UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 30, 2015

 

 

Baxter International Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware

(State or other jurisdiction

of incorporation)

 

1-4448   36-0781620

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

One Baxter Parkway, Deerfield, Illinois   60015
(Address of principal executive offices)   (Zip Code)

(224) 948-2000

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

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

 

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

 

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

 

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

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

On June 30, 2015, in connection with the previously announced distribution by Baxter International Inc. (“ Baxter ”) of approximately 80.5% of the outstanding common stock of Baxalta Incorporated (“ Baxalta ”) to Baxter shareholders (the “ Distribution ”), Baxter entered into several agreements with Baxalta that govern the relationships of the parties following the Distribution, including the following:

 

    Separation and Distribution Agreement

 

    Employee Matters Agreement

 

    Tax Matters Agreement

 

    Shareholder’s and Registration Rights Agreement

A summary of the material terms of these agreements can be found in the section entitled “Certain Relationships and Related Person Transactions —Agreements with Baxter” in the Information Statement filed as Exhibit 99.1 to Baxalta’s Registration Statement on Form 10 filed with the Securities and Exchange Commission on June 5, 2015, which is incorporated herein by reference. The summary is qualified in its entirety by reference to the Separation and Distribution Agreement, the Employee Matters Agreement, the Tax Matters Agreement and the Shareholder’s and Registration Rights Agreement filed as Exhibits 2.1, 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K, each of which is incorporated herein by reference.

Credit Agreements

U.S. $1,500,000,000 Five-Year Credit Agreement

On July 1, 2015, Baxter entered into a $1.5 billion, five-year revolving credit agreement (the “ Credit Agreement ”) among Baxter, as Borrower, various lenders and JPMorgan Chase Bank, National Association, as Administrative Agent. Baxter may, at its option, seek to increase the aggregate commitment under the Credit Agreement by up to $750 million, which would result in a maximum aggregate commitment of up to $2.25 billion.

The Credit Agreement enables Baxter to borrow funds in U.S. Dollars on an unsecured basis at variable interest rates and contains financial and other covenants, including a net leverage ratio covenant and an interest coverage ratio covenant, as well as events of default with respect to Baxter and in some circumstances its Material Subsidiaries that are customary for facilities of this type. The Credit Agreement also provides for the issuance of letters of credit.

The obligations of the lenders under the Credit Agreement to provide advances will terminate on the earlier of (i) July 1, 2020 and (ii) the date on which the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms of the Credit Agreement, including at the option of banks holding a majority of the commitments during the existence of an event of default.

The description above is a summary of the Credit Agreement and is qualified in its entirety by the complete text of the Credit Agreement, a copy of which is attached to this report as Exhibit 10.4 and incorporated herein by reference. Capitalized terms used under this “$1,500,000,000 Five-Year Credit Agreement” subsection that are not defined herein have the meanings given to them in the Credit Agreement.

The Credit Agreement replaces Baxter’s $1.5 billion four-year revolving credit agreement dated as of June 17, 2011, as amended, which was terminated on July 1, 2015.

Euro Credit Agreement

€200,000,000 Credit Agreement

On July 1, 2015, Baxter Healthcare SA and Baxter World Trade SPRL (the “ Euro Borrowers ”) entered into a €200 million, five-year revolving credit agreement (the “ Euro Credit Agreement ”) among the Euro Borrowers, as Borrowers, various lenders and J.P. Morgan Europe Limited, as Administrative Agent. Each of the Euro Borrowers may, at its option, seek to increase the aggregate commitment under the Euro Credit Agreement by up to €100 million, which would result in a maximum aggregate commitment of up to €300 million.

The Euro Credit Agreement enables the Euro Borrowers to borrow funds in Euros, or in Swiss Francs or other currencies if qualifying as Eligible Currencies thereunder, on an unsecured basis at variable interest rates and contains financial and other covenants, including a net leverage ratio covenant and an interest coverage ratio covenant. The Euro Credit Agreement also contains events of default with respect to the Euro Borrowers, and in some circumstances Baxter (as Guarantor) and Material Subsidiaries, that are customary for facilities of this type. The Euro Credit Agreement also provides for the issuance of letters of credit.

The obligations of the lenders under the Euro Credit Agreement to provide advances will terminate on the earlier of (i) July 1, 2020 and (ii) the date on which the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms of the Euro Credit Agreement, including at the option of banks holding a majority of the commitments during the existence of an event of default.

The description above is a summary of the Euro Credit Agreement and is qualified in its entirety by the complete text of the Euro Credit Agreement, a copy of which is attached to this report as Exhibit 10.5 and incorporated herein by reference. Capitalized terms used under this “€200,000,000 Credit Agreement” subsection that are not defined herein have the meanings given to them in the Euro Credit Agreement.

The Euro Credit Agreement replaces Baxter Healthcare SA’s €300 million revolving credit agreement dated as of January 7, 2008, as amended, which was terminated on July 1, 2015.

Item 1.02 Termination of a Material Definitive Agreement.

The disclosure provided under “Credit Agreements” in Item 1.01 of this Form 8-K is hereby incorporated by reference into this Item 1.02.

 

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Item 2.01 Completion of Acquisition or Disposition of Assets.

On July 1, 2015, Baxter completed the Distribution. Baxalta was formed to hold Baxter’s biopharmaceuticals business and, as a result of the Distribution, is now an independent public company trading under the symbol “BXLT” on the New York Stock Exchange. The Distribution was made to Baxter’s shareholders of record as of the close of business on June 17, 2015 (the “ Record Date ”), who received one share of Baxalta common stock for each Baxter common share held as of the Record Date. In the aggregate, 544,521,483 shares of Baxalta common stock were distributed to Baxter’s shareholders in the Distribution.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure provided under “Credit Agreements” in Item 1.01 of this Form 8-K is hereby incorporated by reference into this Item 2.03.

Item 8.01 Other Events.

The Baxter International Inc. Equity Plan (the “ Plan ”) was adopted effective July 1, 2015, by the Baxter Incentive Committee, pursuant to the authority delegated to it by Baxter’s Compensation Committee, to govern the terms of equity grants to participants selected by the Incentive Committee. The Plan provides for grants of stock options and restricted stock units.

All grants are made under the Baxter International Inc. 2015 Incentive Plan, the Baxter International Inc. 2011 Incentive Plan, or one of the other shareholder-approved Baxter equity incentive plans and the terms of the plan under which the equity grant is made will control over any inconsistent provision of the Plan. The summary is qualified in its entirety by reference to the Plan filed as Exhibit 10.6 to this Current Report on Form 8-K, which is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(b) The unaudited pro forma condensed consolidated financial statements of Baxter giving effect to the Distribution, and the related notes thereto, have been derived from its historical consolidated financial statements prepared in accordance with generally accepted accounting principles in the United States of America (“ GAAP ”) and are attached hereto as Exhibit 99.1. Additional information regarding these financial statements is set forth in the introductory paragraphs to Exhibit 99.1.

 

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(d) Exhibits.

 

Exhibit
Number
   Description
  2.1*    Separation and Distribution Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.1    Employee Matters Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.2    Tax Matters Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.3    Shareholder’s and Registration Rights Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.4    Five-Year Credit Agreement, dated as of July 1, 2015, among Baxter International Inc. as Borrower, JPMorgan Chase Bank, National Association, as Administrative Agent and certain other financial institutions named therein.
10.5    Credit Agreement, dated as of July 1, 2015, among Baxter Healthcare SA and Baxter World Trade SPRL, as Borrowers, J.P. Morgan Europe Limited, as Administrative Agent and certain other financial institutions named therein.
10.6    Baxter International Inc. Equity Plan.
99.1    Baxter International Inc. Unaudited Pro Forma Condensed Consolidated Financial Statements.

 

* Baxter International Inc. hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to such agreement to the U.S. Securities and Exchange Commission upon request.

 

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SIGNATURES

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

Date: July 7, 2015

 

BAXTER INTERNATIONAL INC.

/s/ David P. Scharf

By: David P. Scharf
Corporate Vice President, General Counsel and Corporate Secretary

 

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Exhibit Index

 

Exhibit
Number

  

Description

  2.1*    Separation and Distribution Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.1    Employee Matters Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.2    Tax Matters Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.3    Shareholder’s and Registration Rights Agreement, dated as of June 30, 2015, by and between Baxter International Inc. and Baxalta Incorporated.
10.4    Five-Year Credit Agreement, dated as of July 1, 2015, among Baxter International Inc. as Borrower, JPMorgan Chase Bank, National Association, as Administrative Agent and certain other financial institutions named therein.
10.5    Credit Agreement, dated as of July 1, 2015, among Baxter Healthcare SA and Baxter World Trade SPRL, as Borrowers, J.P. Morgan Europe Limited, as Administrative Agent and certain other financial institutions named therein.
10.6    Baxter International Inc. Equity Plan.
99.1    Baxter International Inc. Unaudited Pro Forma Condensed Consolidated Financial Statements.

 

* Baxter International Inc. hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to such agreement to the U.S. Securities and Exchange Commission upon request.

 

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Exhibit 2.1

SEPARATION AND DISTRIBUTION AGREEMENT

BY AND BETWEEN

BAXTER INTERNATIONAL INC.

AND

BAXALTA INCORPORATED

DATED AS OF JUNE 30, 2015


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     2   

Section 1.01

   Definitions      2   

ARTICLE II THE SEPARATION

     19   

Section 2.01

   Governance and Listing of Baxalta      19   

Section 2.02

   The Separation      19   

Section 2.03

   Deferred Baxalta Local Closings      20   

Section 2.04

   Delayed Transfers of Baxalta Assets and Baxalta Liabilities      21   

Section 2.05

   Delayed Transfers of Baxter Assets and Baxter Liabilities      23   

Section 2.06

   Ancillary Agreements      24   

Section 2.07

   Disclaimer of Representations and Warranties      24   

Section 2.08

   Credit Facilities; Financing Arrangements; Baxalta Cash Distribution; Use of Proceeds; Use of Retained Baxalta Common Stock      26   

Section 2.09

   Termination of Agreements      27   

Section 2.10

   Settlement of Accounts between Baxter and Baxalta      28   

Section 2.11

   Novation of Liabilities; Release of Guarantees      29   

Section 2.12

   Mixed Contracts; Mixed Accounts      33   

Section 2.13

   Further Assurances      34   

Section 2.14

   Transition Committee      35   

ARTICLE III THE DISTRIBUTION

     36   

Section 3.01

   Actions Prior to the Distribution      36   

Section 3.02

   The Distribution      37   

Section 3.03

   Fractional Shares; Unclaimed Shares      37   

Section 3.04

   Sole Discretion of Baxter      38   

Section 3.05

   Conditions to the Distribution      38   

ARTICLE IV MUTUAL RELEASES; INDEMNIFICATION

     40   

Section 4.01

   Releases      40   

Section 4.02

   Indemnification by Baxalta      42   

Section 4.03

   Indemnification by Baxter      43   

 

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Section 4.04

Indemnification Obligations Net of Insurance Proceeds and Other Amounts   43   

Section 4.05

Procedures for Indemnification of Third Party Claims   44   

Section 4.06

Additional Matters   46   

Section 4.07

Right of Contribution   47   

Section 4.08

Covenant Not to Sue   48   

Section 4.09

Remedies Cumulative   48   

Section 4.10

Survival of Indemnities   48   

ARTICLE V CERTAIN OTHER MATTERS

  48   

Section 5.01

No Right to Use Regulatory Information   48   

Section 5.02

Directors and Officers Insurance; Fiduciary Liability Insurance   49   

Section 5.03

Insurance Matters   49   

Section 5.04

Late Payments   51   

Section 5.05

Treatment of Payments for Tax Purposes   51   

Section 5.06

Inducement   51   

Section 5.07

Post-Effective Time Conduct   51   

Section 5.08

Licensed Patents   51   

ARTICLE VI EXCHANGE OF INFORMATION; CONFIDENTIALITY

  55   

Section 6.01

Agreement for Exchange of Information; Archives   55   

Section 6.02

Ownership of Information   56   

Section 6.03

Stored Records   57   

Section 6.04

Limitations of Liability   57   

Section 6.05

Other Agreements Providing for Exchange of Information   57   

Section 6.06

Production of Witnesses; Records; Cooperation   58   

Section 6.07

Privileged Matters   58   

Section 6.08

Confidentiality   61   

Section 6.09

Protective Arrangements   62   

ARTICLE VII DISPUTE RESOLUTION

  62   

Section 7.01

Disputes   62   

Section 7.02

Negotiation and Mediation   62   

Section 7.03

Arbitration   63   

 

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Section 7.04

Interim Relief   64   

Section 7.05

Remedies   64   

Section 7.06

Expenses   64   

Section 7.07

Continuation of Services and Commitments   64   

ARTICLE VIII TERMINATION

  64   

Section 8.01

Termination   64   

ARTICLE IX MISCELLANEOUS

  65   

Section 9.01

Counterparts; Entire Agreement; Corporate Power; Facsimile Signatures   65   

Section 9.02

Governing Law   66   

Section 9.03

Assignability   67   

Section 9.04

Third Party Beneficiaries   67   

Section 9.05

Notices   67   

Section 9.06

Severability   68   

Section 9.07

Force Majeure   68   

Section 9.08

No Set Off   68   

Section 9.09

Responsibility for Expenses   69   

Section 9.10

Headings   69   

Section 9.11

Survival of Covenants   69   

Section 9.12

Subsidiaries and Employees   69   

Section 9.13

Waivers   69   

Section 9.14

Amendments   70   

Section 9.15

Interpretation   70   

Section 9.16

Public Announcements   70   

Section 9.17

Specific Performance   70   

Section 9.18

Mutual Drafting   71   

 

Exhibits
Exhibit A Form of Amended and Restated Bylaws of Baxalta
Exhibit B Form of Amended and Restated Certificate of Incorporation of Baxalta

 

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THIS SEPARATION AND DISTRIBUTION AGREEMENT, dated as of June 30, 2015, is by and between Baxter International Inc., a Delaware corporation (“ Baxter ”), and Baxalta Incorporated, a Delaware corporation (“ Baxalta ”) (each a “ Party ” and together, the “ Parties ”).

R E C I T A L S:

WHEREAS, the board of directors of Baxter has determined that it is appropriate and advisable to: (i) separate the Baxalta Business (as defined herein) from the Baxter Business (as defined herein) (the “ Separation ”); and (ii) in connection with the Separation, make a distribution, on a pro rata basis, to holders of the outstanding common shares of Baxter (the “ Baxter Common Shares ”) on the Record Date (as defined herein) of more than 80% of the outstanding shares of common stock, par value $0.01 per share, of Baxalta (the “ Baxalta Common Stock ”), owned by Baxter (the “ Distribution ”);

WHEREAS, the Distribution is motivated by the corporate business purposes described in the Registration Statement;

WHEREAS, each of Baxter and Baxalta has determined that it is necessary and advisable to set forth the principal transactions required to effect the Separation and the Distribution and to describe other agreements that shall govern certain other matters prior to and following the Separation and the Distribution;

WHEREAS, the board of directors of Baxter intends for the Separation to be effected in accordance with, among other transactions, the transactions set forth in Schedule 1.01 ;

WHEREAS, in order to effect the Separation, the board of directors of Baxter have approved the transfer by Baxter of the Baxalta Business, potentially in more than one transaction, to Baxalta in exchange for: (i) the assumption by Baxalta of the Baxalta Liabilities, (ii) the actual or constructive issuance by Baxalta to Baxter of shares of Baxalta Common Stock, (iii) the Baxalta Cash Distribution, and (iv) potentially, certain Baxalta indebtedness (the first such contribution, the “ Initial Baxalta Contribution ,” and together with any subsequent contributions to Baxalta, the “ Baxalta Contributions ”);

WHEREAS, after receiving the Baxalta Cash Distribution, and in all events before the 18-month anniversary of the Distribution (the “ 18-Month Period ”), Baxter will transfer an amount of cash equal to the amount of cash received in the Baxalta Cash Distribution (the “ Baxalta Cash Amount ”) to (i) Baxter creditors, including, potentially, the Baxter International Inc. and Subsidiaries Pension Plan, in satisfaction of Baxter indebtedness, (ii) Baxter shareholders as one or more distribution with respect to Baxter stock, and/or (iii) Baxter shareholders as one or more distribution in redemption of Baxter stock (collectively, the “ Cash Amount Purge ”);

WHEREAS, after receiving any Baxalta indebtedness, and in all events within the 18-Month Period, Baxter will transfer any Baxalta indebtedness to Baxter creditors in satisfaction of Baxter indebtedness (the “ Debt Exchange ”);


WHEREAS, any Baxalta Common Stock not distributed in the Distribution (the “ Remainder Stock ”) is intended to be transferred by Baxter, within the 18-Month Period, to: (i) Baxter creditors, including the Baxter International Inc. and Subsidiaries Pension Plan, in satisfaction of Baxter indebtedness, (ii) Baxter shareholders as one or more distribution with respect to Baxter stock, and/or (iii) Baxter shareholders as a distribution in redemption of Baxter stock (collectively, the “ Subsequent Distributions, ” and together with the Baxalta Contributions, the Distribution, the Cash Amount Purge, the Debt Exchange, and any Subsequent Distributions, the “ Spin-Off ”);

WHEREAS, if any portion of the Remainder Stock has not been disposed of pursuant to the Subsequent Distributions within the 18-Month Period, Baxter will dispose of such Remainder Stock in all events within five years of the Distribution (the “ Remaining Dispositions ”);

WHEREAS, the External Spin-Off is intended to qualify as tax-free to Baxter and its shareholders under Sections 355, 361, and 368 of the Internal Revenue Code of 1986, as amended (the “ Code ”), except to the extent of any cash received in lieu of fractional shares of Baxalta Common Stock;

WHEREAS, Baxter has received a private letter ruling from the IRS with respect to certain significant issues under, among others, Section 355, Section 361, and certain related provisions of the Code with respect to certain aspects of the External Spin-Off and certain related internal restructuring transactions; and

WHEREAS, this Agreement, together with the other documents implementing the Separation, is intended to be, and is hereby adopted, as a “plan of reorganization” within the meaning of Treas. Reg. section 1.368-2(g).

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

ARTICLE I

DEFINITIONS

Section 1.01 Definitions . Reference is made to Section 9.15 regarding the interpretation of certain words and phrases used in this Agreement. In addition, for the purpose of this Agreement, the following terms shall have the meanings set forth below.

Actual Deferred Taxes ” means the deferred Taxes and prepaid Taxes as defined under GAAP as of the Distribution Date.

Adjustment ” has the meaning set forth in Section 2.15 .

Affiliate ” (including, with a correlative meaning, “affiliated”) means, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purpose of this definition, “ control ” (including with correlative meanings, “ controlled by ” and “ under common control with ”), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise,

 

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arrangement, release, warranty, commitment, undertaking or otherwise. The Parties agree that, prior to, at or after the Effective Time and for purposes of this Agreement and the Ancillary Agreements, neither Baxalta nor any of the Baxalta Subsidiaries, including the Transferred Entities, shall be deemed to be an Affiliate of Baxter or any of the Baxter Subsidiaries, and neither Baxter nor any of the Baxter Subsidiaries shall be deemed to be an Affiliate of Baxalta or any of the Baxalta Subsidiaries.

Agent ” means Computershare Trust Company, N.A., or such other trust company or bank duly appointed to act as distribution agent, transfer agent and registrar for the Baxalta Common Stock in connection with the Distribution.

Agreement ” means this Separation and Distribution Agreement and each of the Schedules and Exhibits hereto.

Ancillary Agreements ” means all agreements entered into by the Parties or their Subsidiaries (but as to which no Third Party is a party) in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

Assets ” means, with respect to any Person, the assets, rights, interests, claims and properties of all kinds, real and personal, tangible, intangible and contingent, wherever located (including in the possession of suppliers, distributors, other Third Parties or elsewhere), of such Person, including rights and benefits pursuant to any contract, license, permit, indenture, note, bond, mortgage, agreement, concession, franchise, instrument, undertaking, commitment, understanding or other arrangement and any rights or benefits pursuant to any Proceeding.

Baxalta ” has the meaning set forth in the Preamble.

Baxalta Accounts ” has the meaning set forth in Section 2.10(b) .

Baxalta Assets ” means only the following Assets:

 

  (i) all of the issued and outstanding capital stock or other equity interests of the Transferred Entities (excluding, for the avoidance of doubt, the capital stock of Baxalta) that are owned by either Party or any of its Subsidiaries as of the Effective Time or, in the case of a Transferred Entity formed after the Effective Time, as of the date on which such Transferred Entity is transferred from Baxter or a Baxter Subsidiary to Baxalta or a Baxalta Subsidiary;

 

  (ii) subject to the exceptions described on Schedule 1.01(a) , the Assets of either Party or any of its Subsidiaries included or reflected on the Baxalta Pro Forma Balance Sheet or any notes or subledgers thereto, and any such Assets as of the Effective Time that would have been included on such Baxalta Pro Forma Balance Sheet had such Assets existed on the date thereof, it being understood that (x) the Baxalta Pro Forma Balance Sheet and the notes and subledgers thereto shall be used to determine the types of, and methodologies used to determine, those Assets that are included in the definition of Baxalta Assets pursuant to this clause (ii); and (y) the amounts set forth on the Baxalta Pro Forma Balance Sheet with respect to any Assets shall not be treated as minimum or maximum amounts or limitations on the amount of such Assets that are included in the definition of Baxalta Assets pursuant to this clause (ii);

 

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  (iii) the Assets expressly allocated to Baxalta or a Baxalta Subsidiary pursuant to this Agreement or any Ancillary Agreement;

 

  (iv) all rights, interests and claims of either Party or any of its Subsidiaries as of the Effective Time to the Baxalta Products, including all rights, interests and claims of either Party or any of its Subsidiaries as of the Effective Time to all clinical study data, reports and analyses, product and marketing registrations and applications (which shall include all U.S. Food and Drug Administration and other regulatory drug approvals and licenses related to, and all related applications and other information submitted for the purposes of or prepared in connection with obtaining an approval for, a Baxalta Product) to the extent related to the Baxalta Products; provided that, if the Assets to be transferred pursuant to this paragraph conflict with or expand the transfer of Baxalta Intellectual Property pursuant to clause (vi) of this definition, then clause (vi) and the definition of Baxalta Intellectual Property shall prevail;

 

  (v) all rights, interests and claims of either Party or any of its Subsidiaries as of the Effective Time under the Baxalta Contracts; provided that if there is deemed to be any inconsistency between this clause (v) and Section 2.12(a) , then Section 2.12(a) shall control;

 

  (vi) all rights, interests and claims of either Party or any of its Subsidiaries as of the Effective Time to any Baxalta Intellectual Property;

 

  (vii) all other rights, interests and claims of either Party or any of their Subsidiaries as of the Effective Time with respect to Information that is exclusively related to the Baxalta Assets, the Baxalta Liabilities, the Baxalta Business or the Transferred Entities and, subject to the provisions of the applicable Ancillary Agreements, a non-exclusive right for use in the Baxalta Business in the ordinary course to all other Information that is related (but only to the extent so related) to the Baxalta Assets, the Baxalta Liabilities, the Baxalta Business or the Transferred Entities; provided that, if the Information to be transferred pursuant to this paragraph conflicts with or expands the transfer of Baxalta Intellectual Property pursuant to clause (vi) of this definition, then clause (vi) and the definition of Baxalta Intellectual Property shall prevail;

 

  (viii) all rights, interests and claims of either Party or any of its Subsidiaries as of the Effective Time to the facilities and other real property, including owned and leased real property, listed on Schedule 1.01(b) ;

 

  (ix) all approvals, registrations, permits or authorizations issued by any Governmental Authority that relate exclusively to the Baxalta Business or the Baxalta Assets; and

 

  (x) the Assets of either Party or any of its Subsidiaries as of the Effective Time on Schedule 1.01(c) .

 

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The Parties agree that all Delayed Baxalta Assets shall be Baxalta Assets for purposes of this Agreement and the Ancillary Agreements regardless of when such Delayed Baxalta Assets are assumed by Baxalta or a Baxalta Subsidiary or designee. The Parties also agree that, if any Transferred Entity holds a Baxter Asset, such Baxter Asset shall nonetheless be treated as a Baxter Asset and the Parties shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts for such Baxter Asset to be transferred to Baxter or a Baxter Subsidiary.

Baxalta Business ” means:

 

  (i) the business and operations conducted by Baxter and its Subsidiaries prior to the Distribution comprising what is referred to in Baxter’s December 31, 2014 Form 10-K as the BioScience segment, including the Baxalta Products but excluding the BioSurgery commercial franchise described therein; and

 

  (ii) all of (or, to the extent only a portion thereof is specified in Schedule 1.01(e) , such portion of) the business, operations and activities conducted at any time prior to the Effective Time by either Party or any of its Subsidiaries to the extent such business, operations and activities relate to, arise out of or result from a Baxalta Former Business, a Baxalta Discontinued Product, a Baxalta Discontinued Project or a Baxalta Discontinued Facility.

Baxalta Cash Distribution ” has the meaning set forth in Section 2.08(c) .

Baxalta Common Stock ” has the meaning set forth in the Recitals.

Baxalta Contracts ” means the following contracts, agreements, arrangements, commitments or understandings to which either Party or any of its Subsidiaries is a party or by which it or its Assets is bound, whether or not in writing, in each case, prior to the Effective Time, except to the extent otherwise described in Schedule 1.01(d) :

 

  (i) any contract, agreement, arrangement, commitment or understanding related exclusively to the Baxalta Business;

 

  (ii) the portion of any Mixed Contract that relates to the Baxalta Business, including those referenced or included in Schedule 1.01(j) ;

 

  (iii) any contract, agreement, arrangement, commitment or understanding or portion thereof that is a Baxalta Liability;

 

  (iv) any employment, change of control, retention, consulting, indemnification, termination, severance or other similar agreements with any employee or consultant of Baxalta or a Baxalta Subsidiary; and

 

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  (vi) any other contract, agreement, arrangement, commitment or understanding or portion thereof that is otherwise expressly contemplated pursuant to this Agreement or any Ancillary Agreement to be assigned to Baxalta or a Baxalta Subsidiary; provided , however, that (A) such contracts, agreements, arrangements, commitments or understandings or portions thereof that are contemplated to be retained by Baxter or a Baxter Subsidiary pursuant to any provision of this Agreement or any Ancillary Agreement shall not be Baxalta Contracts; (B) such contracts, agreements, arrangements, commitments or understandings or portions thereof that relate to debt instruments, insurance arrangements, or employee benefit plans or programs shall be Baxalta Contracts only to the extent expressly provided for under the terms of this Agreement or any Ancillary Agreement; and (C) the rights and obligations of Baxter and the Baxter Subsidiaries under this Agreement and the Ancillary Agreements shall not be Baxalta Contracts.

Baxalta Credit Facility ” means, collectively, (i) the $1,200,000,000 Five-Year Credit Agreement, among Baxalta Incorporated as Borrower, JPMorgan Chase Bank, National Association, as Administrative Agent and certain other financial institutions named therein and (ii) the €200,000,000 Credit Agreement among Baxalta GmbH and Baxalta Ireland Financing Ltd., as Borrowers, J.P. Morgan Europe Limited, as Administrative Agent and certain other financial institutions named therein.

Baxalta Discontinued Facilities ” means the closed or divested manufacturing, distribution, warehouse or research and development facilities or other real property operated prior to the Effective Time by either Party or any of its Subsidiaries that were solely or primarily related to the conduct of the any business, operations and activities that was (or would have been had such categories been in effect at the time of such discontinuation) categorized as part of Baxter’s publicly reported BioScience segment, as well as each closed or divested facility or property set forth on Schedule 1.01(e) .

Baxalta Discontinued Products ” means any product that was (or would have been had such categories been in effect at the time of such discontinuation) categorized as part of Baxter’s publicly reported BioScience segment if such product, at any time prior to the Effective Time, was owned, licensed by or to, sub-licensed by or to, manufactured, marketed, co-branded, co-promoted or otherwise promoted, distributed or sold anywhere in the world by or on behalf of either Party or any of its Subsidiaries, but in each case that, as of immediately prior to the Effective Time, neither Party nor any of their respective Subsidiaries is marketing, co-promoting, promoting, distributing or selling anywhere in the world, as well as each product not marketed, co-promoted, distributed or sold by either Party of any of its Subsidiaries as of immediately prior to the Effective Time to the extent set forth on Schedule 1.01(e) .

Baxalta Discontinued Projects ” means any discovery or research and development projects that were conducted at any time prior to the Effective Time by or on behalf of the business that was (or would have been had such categories been in effect at the time of such discontinuation) categorized as part of Baxter’s publicly reported BioScience segment and that were terminated, divested or discontinued prior to the Effective Time by either Party or any of its Subsidiaries, as well as each terminated, divested of discontinued discovery or research and development project set forth on Schedule 1.01(e) .

 

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Baxalta Former Businesses ” means (i) the Former Businesses set forth on Schedule 1.01(e) ; and (ii) any Former Business to the extent associated with, or to the extent engaged in the discovery, research, development, importation, exportation, manufacture, marketing, distribution, promotion or sale of a Baxalta Discontinued Product.

Baxalta Indemnifying Party ” has the meaning set forth in Section 4.02 .

Baxalta Indemnitees ” means (i) Baxalta and each Baxalta Subsidiary; (ii) each of the respective past, present and future directors, officers, employees or agents of the entities described in (i) above, in each case in their respective capacities as such; and (iii) each of the heirs, executors, administrators, successors and assigns of any of the foregoing.

Baxalta Indemnity Obligations ” means all Liabilities to the extent such Liabilities relate to, arise out of or result from, directly or indirectly, any of the following items:

 

  (i) any Baxalta Liability;

 

  (ii) any failure of Baxalta or a Baxalta Subsidiary or any other Person to pay, perform or otherwise promptly discharge any Baxalta Liabilities in accordance with their terms, whether prior to, at or after the Effective Time;

 

  (iii) the conduct of any business, operation or activity by Baxalta or a Baxalta Subsidiary from and after the Effective Time;

 

  (iv) any breach by Baxalta or a Baxalta Subsidiary of this Agreement or any Ancillary Agreement (subject to limitations, if any, expressly set forth in the applicable Ancillary Agreement); and

 

  (v) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the Registration Statement or the Information Statement (other than the matters described in clause (v) of the definition of Baxter Indemnity Obligations).

Baxalta Intellectual Property ” means (i) the Patents and Trademarks set forth on Schedule 1.01(f) ; (ii) the Other Intellectual Property owned by, licensed by or to, or sublicensed by or to either Party or any of its Subsidiaries that, as of the Effective Time, is exclusively used or held for use in the Baxalta Business; (iii) the rights to any Patents, Trademarks, and Other Intellectual Property that are specifically allocated to Baxalta or a Baxalta Subsidiary pursuant to any Ancillary Agreement or to the extent set forth on Schedule 1.01(g) ; and (iv) to the extent of any Other Intellectual Property not addressed in clauses (i)-(iii) of this paragraph and that is used or held for use in the Baxalta Business as of the Effective Time, the non-exclusive right to such Other Intellectual Property for use in the ordinary course of the Baxalta Business; provided that, for the avoidance of doubt, the right granted pursuant to this clause (iv) shall not in any way

 

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expand any rights to intellectual property or other proprietary rights (including Patents, Trademarks and all Other Intellectual Property) that are specifically addressed in this Agreement or any Ancillary Agreement, including with respect to the intellectual property listed or described on Schedule 1.01(h) .

Baxalta Liabilities ” means all of the following Liabilities of either Party or any of its Subsidiaries:

 

  (i) subject to the exceptions described on Schedule 1.01(i) , the Liabilities of either Party or any of its Subsidiaries included or reflected on the Baxalta Pro Forma Balance Sheet or any notes or subledgers thereto, and any such Liabilities as of the Effective Time that would have been included on such Baxalta Pro Forma Balance Sheet had such Liabilities existed on the date thereof, it being understood that (x) the Baxalta Pro Forma Balance Sheet and the notes and subledgers thereto shall be used to determine the types of, and methodologies used to determine, those Liabilities that are included in the definition of Baxalta Liabilities pursuant to this clause (i); and (y) the amounts set forth on the Baxalta Pro Forma Balance Sheet with respect to any Liabilities shall not be treated as minimum or maximum amounts or limitations on the amount of such Liabilities that are included in the definition of Baxalta Liabilities pursuant to this clause (i);

 

  (ii) except as otherwise set forth herein, all Liabilities relating to, arising out of or resulting from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to, on or after the Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Effective Time), in each case to the extent that such Liabilities relate to, arise out of or result from the Baxalta Business or a Baxalta Asset;

 

  (iii) all Liabilities for claims made by Third Parties, or the directors, officers, employees, agents of Baxter, Baxalta or their respective Subsidiaries or Affiliates against either Party or any of its Subsidiaries to the extent relating to, arising out of or resulting from the Baxalta Business or the Baxalta Assets;

 

  (iv) all Liabilities expressly allocated to Baxalta or a Baxalta Subsidiary pursuant to this Agreement or any Ancillary Agreement, and the obligations of Baxalta or a Baxalta Subsidiary under such agreements;

 

  (v) all Liabilities relating to, arising out of or resulting from (A) the Baxalta Credit Facility or the Financing Arrangements, (B) any other indebtedness of Baxalta or any Baxalta Subsidiary (whether incurred prior to, on or after the Effective Time) or (C) guarantees and obligations of the obligor under letters of credit issued in connection with the Baxalta Business;

 

  (vi) subject to any additional Liabilities or limitations related to Proceedings set forth on Schedule 1.01(k) , the Liabilities relating to, arising out of, or resulting from Proceedings to the extent such Proceedings relate to, arise out of, or result from the Baxalta Business, the Baxalta Assets, or the other Baxalta Liabilities;

 

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  (vii) all Liabilities assumed by Baxalta or a Baxalta Subsidiary from a Third Party after the Effective Time (whether or not such Liabilities initially arose or accrued before the Effective Time);

 

  (viii) all Liabilities relating to, arising out of, or resulting from the operation or conduct of any business conducted by Baxalta or a Baxalta Subsidiary at any time after the Effective Time;

 

  (ix) all Liabilities relating to, arising out of, or resulting from any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the Registration Statement, the Information Statement (other than the matters described in clause (v) of the definition of Baxter Indemnity Obligations) or any other form, statement, schedule or other material filed with or furnished to (A) the Commission, (B) any other Governmental Authority or (C) holders of any securities of Baxalta or any Baxalta Subsidiary in connection with the registration, sale or distribution of securities or disclosure related thereto (including periodic disclosure obligations); and

 

  (x) all other Liabilities set forth on Schedule 1.01(l) .

The Parties agree that all Delayed Baxalta Liabilities shall be Baxalta Liabilities for purposes of this Agreement and the Ancillary Agreements regardless of when such Delayed Baxalta Liabilities are assumed by Baxalta or a Baxalta Subsidiary or designee. The Parties also agree that, if any Transferred Entity holds a Baxter Liability, such Baxter Liability shall nonetheless be treated as a Baxter Liability and the Parties shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts for such Baxter Liability to be assumed by Baxter or a Baxter Subsidiary.

Baxalta Products ” means the products set forth on Schedule 1.01(n) .

Baxalta Pro Forma Balance Sheet ” means the pro forma combined balance sheet of Baxalta and the Baxalta Subsidiaries, including any notes or subledgers thereto, as of March 31, 2015, as presented in the Information Statement.

Baxalta Subsidiary ” means any Business Entity that is a Subsidiary of Baxalta prior to, at or after the Effective Time, including the Transferred Entities, which shall be deemed to have been Baxalta Subsidiaries at all times prior to, at and after the Effective Time.

Baxter ” has the meaning set forth in the Preamble.

Baxter Accounts ” has the meaning set forth in Section 2.10(b) .

 

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Baxter Assets ” means all Assets of the Parties or their respective Subsidiaries as of the Effective Time, other than the Baxalta Assets. For the avoidance of doubt, the Baxter Assets include those Assets described on Schedule 1.01(m) .

Baxter Business ” means all businesses, operations and activities (whether or not such businesses, operations or activities are or have been terminated, divested or discontinued) conducted at any time prior to the Effective Time by either Party or its Subsidiaries, other than the Baxalta Business.

Baxter Common Shares ” has the meaning set forth in the Recitals.

Baxter Indemnifying Party ” has the meaning set forth in Section 4.03 .

Baxter Indemnitees ” means (i) Baxter and each Baxter Subsidiary; (ii) each of the respective past, present and future directors, officers, employees or agents of the entities described in (i) above, in each case in their respective capacities as such; and (iii) each of the heirs, executors, administrators, successors and assigns of any of the foregoing.

Baxter Indemnity Obligations ” means all Liabilities to the extent such Liabilities relate to, arise out of or result from, directly or indirectly, any of the following items:

 

  (i) any Baxter Liability;

 

  (ii) any failure of Baxter or a Baxter Subsidiary or any other Person to pay, perform or otherwise promptly discharge any Baxter Liabilities in accordance with their terms, whether prior to, at or after the Effective Time;

 

  (iii) the conduct of any business, operation or activity by Baxter or a Baxter Subsidiary from and after the Effective Time (other than the conduct of business, operations, or activities for the benefit of Baxalta or any of its Subsidiaries pursuant to this Agreement or any Ancillary Agreement);

 

  (iv) any breach by Baxter or a Baxter Subsidiary of this Agreement or any Ancillary Agreement (subject to limitations, if any, expressly set forth in the applicable Ancillary Agreement); and

 

  (v) any untrue statement or alleged untrue statement of a material fact made explicitly in Baxter’s name in the Registration Statement or the Information Statement as the same may be amended prior to the Effective Time, or any omission or alleged omission to state a material fact necessary to make any such statement made explicitly in Baxter’s name not misleading.

Baxter Liabilities ” means the Liabilities relating to, arising out of or resulting from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Effective Time) of Baxter and the Baxter Subsidiaries and, prior to the Effective Time, Baxalta and the Baxalta Subsidiaries, in each case that are not Baxalta Liabilities or Baxalta Indemnity Obligations.

 

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Baxter Subsidiary ” means any Business Entity that is a Subsidiary of Baxter prior to, at or after the Effective Time (other than Baxalta or a Baxalta Subsidiary).

Business Entity ” means any corporation, general or limited partnership, trust, joint venture, unincorporated organization, limited liability entity or other entity.

Bylaws ” means the Amended and Restated Bylaws of Baxalta, substantially in the form of Exhibit A .

Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of Baxalta, substantially in the form of Exhibit B .

Change of Control ” means, with respect to a Party (or a Subsidiary thereof to the extent of any Ancillary Agreement to which such Subsidiary is a party), the occurrence after the Effective Time of any of the following: (i) the sale, conveyance or disposition, in one or a series of related transactions, of all or substantially all of the assets of such Party (or Subsidiary, if applicable) to a Third Party that is not an Affiliate of such Party or other Person prior to such transaction or the first of such related transactions; (ii) the consolidation, merger or other business combination of a Party (or Subsidiary, if applicable) with or into any other Business Entity, immediately following which the then-current stockholders of the Party (or Subsidiary, if applicable), as such, fail to own in the aggregate at least Majority Voting Power of the surviving party in such consolidation, merger or business combination or of its ultimate publicly-traded parent Business Entity; (iii) a transaction or series of transactions in which any Person or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) acquires Majority Voting Power of such Party (or Subsidiary, if applicable) (other than (a) a reincorporation or similar corporate transaction in which each of such Party’s (or Subsidiary’s, if applicable) stockholders owns, immediately thereafter, interests in the new parent company in substantially the same percentage as such stockholder owned in such Party or Person immediately prior to such transaction, or (b) in connection with a transaction described in clause (ii), which shall be governed by such clause (ii)); or (iv) a majority of the board of directors of such Party ceasing to consist of individuals who have become directors as a result of being nominated or elected by a majority of such Party’s directors.

Code ” has the meaning set forth in the Recitals.

Commission ” means the United States Securities and Exchange Commission.

Consents ” means any consents, waivers or approvals from, or notification requirements to, any Third Parties.

Conveyance and Assumption Instruments ” means, collectively, such deeds, bills of sale, asset transfer agreements, business transfer agreements, demerger plans, deeds or agreements, endorsements, assignments, assumptions (including Liability assumption agreements), leases, subleases, affidavits and other instruments of sale, conveyance, contribution, distribution, lease, transfer and assignment between Baxter or, where applicable, a Baxter Subsidiary or designee of Baxter, on the one hand, and Baxalta or, where applicable, a Baxalta Subsidiary, on the other hand, as may be necessary or advisable under the Laws of the relevant jurisdictions to effect the Separation.

 

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CPR ” has the meaning set forth in Section 7.02 .

Custodial Party ” has the meaning set forth in Section 6.03(a) .

Deferred Baxalta Local Business ” has the meaning set forth in Section 2.03(a) .

Delayed Baxter Asset ” has the meaning set forth in Section 2.05(a) .

Delayed Baxter Liability ” has the meaning set forth in Section 2.05(a) .

Delayed Baxalta Asset ” has the meaning set forth in Section 2.04(a) .

Delayed Baxalta Liability ” has the meaning set forth in Section 2.04(a) .

Direct Claim ” has the meaning set forth in Section 4.06(b) .

Dispute ” has the meaning set forth in Section 7.01 .

Dispute Notice ” has the meaning set forth in Section 7.02 .

Distribution ” has the meaning set forth in the Recitals.

Distribution Date ” means the date of the consummation of the Distribution, which shall be determined by the board of directors of Baxter in its sole discretion.

Distribution Ratio ” has the meaning set forth in Section 3.02(c) .

Effective Time ” means 12:01 a.m. Eastern Time on the Distribution Date.

Employee Inventor Remuneration Entitlement ” has the meaning set forth in Section 5.08(g) .

Employee Matters Agreement ” means the Employee Matters Agreement to be entered into by and between Baxter and Baxalta in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

Employment Tax ” means withholding, payroll, social security, workers compensation, unemployment, disability and any similar tax imposed by any Tax Authority, and any interest, penalties, additions to tax or additional amounts with respect to the foregoing imposed on any taxpayer or consolidated, combined or unitary group of taxpayers.

Estimated Deferred Taxes ” means the deferred Taxes and prepaid Taxes as defined under GAAP, as reflected on the pro forma balance sheet accounts of Baxalta and the Baxalta Subsidiaries, as of the Distribution Date as determined by the Parties within sixty (60) days after the Distribution Date.

 

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Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

Field-of-Use ” means, with respect to the Licensed Patent Schedule, the specific field-of-use set forth for each patent or group of patents in such Licensed Patent Schedule.

Final Adjustment ” has the meaning set forth in Section 2.15 .

Financing Arrangements ” means the financing arrangements and agreements (other than the Baxalta Credit Facility) to be entered into prior to the Effective Time pursuant to which Baxalta shall be entitled to borrow a principal amount of at least US$4,000,000,000.

Force Majeure ” means, with respect to a Party, any changes in Law, acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections or earthquakes.

Former Business ” means any Business Entity, division, business unit or business, including any business within the meaning of Rule 11-01(d) of Regulation S-X promulgated under the Exchange Act (in each case, including any Assets and Liabilities comprising the same) that is not owned, leased or operated by a Party or any of its Subsidiaries as of immediately prior to the Effective Time because it has been sold, conveyed, assigned, transferred or otherwise disposed of or divested to one or more Persons (other than a Party or any of its Subsidiaries) or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated, in each case, prior to the Effective Time.

GAAP ” means U.S. generally accepted accounting principles as applied by Baxter as of the Distribution Date.

Governmental Authority ” means any supranational, international, national, federal, state, provincial or local court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority, including the NYSE and any similar self-regulatory body under applicable securities Laws.

Indemnifying Party ” has the meaning set forth in Section 4.04(a) .

Indemnitee ” means a Baxalta Indemnitee or a Baxter Indemnitee, as appropriate.

Indemnity Payment ” has the meaning set forth in Section 4.04(a) .

Information ” means information in written, oral, electronic or other tangible or intangible forms, including studies, reports, records, books, instruments, surveys, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, marketing plans, customer names, Privileged Information, and other technical, financial, employee or business information or data, including cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product data and literature, artwork, design, and quality records and reports; provided that “Information” does not include Patents, Trademarks, or Other Intellectual Property.

 

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Information Statement ” means the information statement forming a part of the Registration Statement as the same may be amended or supplemented from time to time prior to the Effective Time.

Insurance Proceeds ” means, with respect to any insured party, those monies, net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof, which are: (i) received by an insured from an insurance carrier or its estate; or (ii) paid by an insurance carrier or its estate on behalf of the insured.

International Commercial Operations Agreement ” means the International Commercial Operations Agreement to be entered into prior to the Effective Time by and between Baxter and Baxalta or any of their respective Subsidiaries.

International Transition Period Agreements ” means, collectively, the International Commercial Operations Agreement and any applicable portion of the Transition Services Agreement, and all silent partnership agreements, undisclosed agency agreements and other agreements to be entered into by and between Baxter, or where applicable, a Baxter Subsidiary, on the one hand, and Baxalta or, where applicable, a Baxalta Subsidiary, on the other hand, pursuant to which: (i) Baxter or a Baxter Subsidiary manages and operates all or a portion of a Deferred Baxalta Local Business, a Delayed Baxalta Asset or a Delayed Baxalta Liability in order for the rewards and burdens relating to such Deferred Baxalta Local Business, Delayed Baxalta Asset or Delayed Baxalta Liability to inure from and after the Effective Time to Baxalta or a Baxalta Subsidiary; and (ii) Baxter and the Baxter Subsidiaries on the one hand, and Baxalta and the Baxalta Subsidiaries on the other hand, provide certain transitional services to the other.

Law ” means any supranational, international, national, federal, state, provincial, local or similar law (including common law), statute, code, order, ordinance, rule, regulation, treaty (including any Tax treaty), license, permit, authorization, approval, Consent, decree, injunction, binding judicial or administrative interpretation or other requirement, in each case enacted, promulgated, issued or entered by a Governmental Authority; provided that references to any Law shall, unless otherwise specified or unless the context clearly requires otherwise, refer to such Law as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability.

Liabilities ” means all debts, liabilities, obligations, responsibilities, response actions, losses, damages (whether compensatory, punitive, consequential, incidental, treble or other), fines, penalties and sanctions, absolute or contingent, matured or unmatured, liquidated or unliquidated, foreseen or unforeseen, joint, several or individual, asserted or unasserted, accrued or unaccrued, known or unknown, whenever arising, including those arising under or in connection with any Law or other pronouncements of Governmental Authorities having the effect of Law, Proceeding, threatened Proceeding, order or consent decree of any Governmental Authority or any award of any arbitration tribunal, and those arising under any contract, guarantee, commitment or undertaking, whether sought to be imposed by a Governmental Authority, private party, or Party, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, or otherwise, and including any costs, expenses, interest, attorneys’ fees, disbursements and expenses of counsel, expert and consulting fees and costs related thereto or to the investigation or defense thereof.

 

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Licensed Patents ” means, with respect to the Licensed Patent Schedule, any of the following that Licensor or any of its Affiliates, at any time during the term of this Agreement, owns, whether directly or indirectly, and has the right to grant a license as provided for under Section 5.08 without violating the terms of any agreement or other arrangement with any Third Party, in each case to the extent represented on such Licensed Patent Schedule: (i) all national, regional and international patents and patent applications, including provisional patent applications and patent applications filed from an invention disclosure; (ii) all patent applications filed either from the patents, patent applications or provisional applications in clause (i) or from an application claiming priority from any of these, including divisionals, continuations, converted provisionals, and continued prosecution applications; (iii) claims of continuation-in-part applications to the extent directed to subject matter disclosed in the applications or patents enumerated in clause (i) or (ii); (iv) all patents that have issued or in the future issue from the foregoing patent applications specified in clauses (i) and (ii), including utility models, petty patents and design patents and certificates of invention; (v) all patent term extensions or restorations by existing or future extension or restoration mechanisms, including any supplementary protection certificates and the like, as well as any revalidations, reissues, re-examinations, oppositions and the like of the foregoing patents or patent applications specified in clauses (i), (ii) and (iii); and (vi) all similar rights, including so-called pipeline protection, or any importation, revalidation, confirmation or introduction patent or registration patent or patents of addition to each of such foregoing patent applications and patents.

Licensed Patent Schedule ” has the meaning set forth in Section 5.08(a) .

Licensee ” means, with respect to the Licensed Patent Schedule, the licensee of the licenses described in such Licensed Patent Schedule.

Licensor ” means, with respect to the Licensed Patent Schedule, the licensor of the licenses described in such Licensed Patent Schedule.

Local Closing Date ” means the date of consummation of the local closing of any Deferred Baxalta Local Business.

Long Term Services Agreement ” means the Long Term Services Agreement to be entered into by and between Baxter and Baxalta or their respective Subsidiaries in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

Majority Voting Power ” means a majority of the ordinary voting power in the election of directors of all the outstanding voting securities of the resulting Business Entity or of the Party, respectively.

Manufacturing and Supply Agreement ” means the Manufacturing and Supply Agreement to be entered into by and between Baxter and Baxalta or their respective Subsidiaries in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

 

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Mixed Account ” means an account receivable or account payable relating to both the Baxter Business and the Baxalta Business.

Mixed Contract ” means any contract or agreement to which either Party or any of its respective Subsidiaries and one or more Third Parties are a party as of immediately prior to the Effective Time that inures to the benefit or burden of both the Baxter Business and the Baxalta Business, including those contracts and agreements indicated as “mixed” in Schedule 1.01(o) , but in any case excluding those contracts or agreements that are intended to solely be used for the benefit or burden of the Baxter Business following the Separation (including, for example, employment agreements with continuing employees of the Baxter Business).

Non-Custodial Party ” has the meaning set forth in Section 6.03(a) .

Notice ” means any written notice, request demand or other communication specifically referencing this Agreement and given in accordance with Section 9.05 .

NYSE ” means the New York Stock Exchange.

Other Intellectual Property ” means all rights, title or interest in, under or in respect of: (i) published and unpublished works of authorship and copyrights therein, and all applications, registrations, and renewals in connection therewith; (ii) software and compilations of information; (iii) registered or unregistered Trademarks; and (iv) inventions (whether patentable or not), formulas, processes, developments, technology, trade secrets and know-how.

Party ” or “ Parties ” has the meaning set forth in the Preamble.

Patents ” means: (i) all national, regional and international patents and patent applications, including provisional patent applications, whether pending, enforced, abandoned or expired; (ii) all patent applications filed either from the patents, patent applications or provisional applications in clause (i) or from an application claiming priority from any of these, including divisionals, continuations, continuations-in-part, converted provisionals, and continued prosecution applications; (iii) all patents that have issued or in the future issue from the foregoing patent applications specified in clauses (i) and (ii), including utility models, petty patents, design patents and certificates of invention; (iv) all patent term extensions or restorations by existing or future extension or restoration mechanisms, including any supplementary protection certificates and the like, as well as any revalidations, reissues, re-examinations, oppositions and the like of the foregoing patents or patent applications specified in clauses (i), (ii) and (iii); and (v) all similar rights, including so-called pipeline protection, or any importation, revalidation, confirmation or introduction patent or registration patent or patents of addition to each of such foregoing patent applications and patents.

Person ” means any (i) individual, (ii) Business Entity or (iii) Governmental Authority, and including any successor or permitted assignee, by merger or otherwise, of any of the foregoing.

Prime Rate ” means the rate per annum publicly announced by Citibank, N.A. (or any successor thereto or other major money center commercial bank agreed to by the Parties) from time to time as its prime lending rate, as in effect from time to time.

 

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Privileged Information ” means any information, in written, oral, electronic or other tangible or intangible forms, including any communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), as to which a Party or its respective Subsidiaries would be entitled to assert or have asserted a privilege, including the attorney-client and attorney work product privileges.

Proceeding ” means any past, present or future suit, countersuit, action, alternative dispute resolution process, claim, counterclaim, demand, hearing, inquiry, investigation or proceeding before a judicial, quasi-judicial, tribunal, arbitration or mediation body, or by or before a Governmental Authority, in each case involving Baxter, a Baxter Subsidiary, a Baxter Indemnitee (but only if in a capacity entitling such Person to the rights of a Baxter Indemnitee), Baxalta, a Baxalta Subsidiary, or a Baxalta Indemnitee (but only if in a capacity entitling such Person to the rights of a Baxalta Indemnitee), in each case other than any such matter solely between Baxter or any Baxter Subsidiaries, on the one hand, and Baxalta or any Baxalta Subsidiaries, on the other hand, arising with respect to a controversy, dispute or claim under this Agreement or any Ancillary Agreement.

Prohibited Person ” means each Person described on Schedule 1.01(q) to the extent described therein, together with such Person’s Affiliates.

Record Date ” means the close of business on the date to be determined by the Baxter board of directors as the record date for determining holders of Baxter Common Shares entitled to participate in the Distribution.

Record Holders ” means the holders of record of Baxter Common Shares as of the Record Date.

Records Facility ” has the meaning set forth in Section 6.03(a) .

Registration Statement ” means the registration statement on Form 10 filed under the Exchange Act on December 10, 2014, pursuant to which the Baxalta Common Stock to be distributed in the Distribution has been registered, together with all amendments and supplements thereto.

Remuneration Assessment ” has the meaning set forth in Section 5.08(g)(ii) .

Representatives ” has the meaning set forth in Section 6.08(a) .

Security Interest ” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever.

Separation ” has the meaning set forth in the Recitals.

Sold Business ” has the meaning set forth in Section 5.08(c) .

Stored Records ” has the meaning set forth in Section 6.03(a) .

 

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Subsidiary ” or “ subsidiary ” shall mean, with respect to any Person, any Business Entity of which such Person: (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such Business Entity; (B) the total combined equity interests; or (C) the capital or profit interests, in the case of a partnership; or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

Tangible Information ” means Information that is contained in written, electronic or other tangible forms.

Tax ” means: (i) any income, net income, gross income, gross receipts, profits, capital stock, franchise, property, ad valorem, stamp, excise, severance, occupation, service, sales, use, license, lease, transfer, import, export, customs duties, value added, alternative minimum, estimated or other similar tax (including any fee, assessment, or other charge in the nature of or in lieu of any tax) imposed by any Tax Authority, and any interest, penalties, additions to tax or additional amounts with respect to the foregoing imposed on any taxpayer or consolidated, combined or unitary group of taxpayers; and (ii) any Employment Tax.

Tax Authority ” means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such Governmental Authority or subdivision.

Tax Matters Agreement ” means the Tax Matters Agreement to be entered into by and between Baxter and Baxalta or their respective Subsidiaries in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

Territory ” means, with respect to a Licensed Patent, except as otherwise set forth on the Licensed Patent Schedule, the entire world.

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

Third Party Claim ” has the meaning set forth in Section 4.05(a) .

Trademarks ” means all trademarks, trade names, brand names, domain names, service marks, trade dress, logos and all other source indicators, including all goodwill associated therewith and all applications, registrations and renewals in connection therewith.

Transferred Entities ” means the entities set forth on Schedule 1.01(p) .

Transition Committee ” has the meaning set forth in Section 2.14 .

Transition Services Agreement ” means the Transition Services Agreement to be entered into by and between Baxter and Baxalta or their respective Subsidiaries in connection with the Separation, the Distribution or the other transactions contemplated by this Agreement.

U.S. ” or “ United States ” means the United States of America, including all territories and possessions of the United States of America.

 

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ARTICLE II

THE SEPARATION

Section 2.01 Governance and Listing of Baxalta .

(a) Adoption of Baxalta’s Charter and Bylaws. On or prior to the Distribution Date, Baxter and Baxalta shall take all necessary actions so that, as of the Effective Time, the Certificate of Incorporation and the Bylaws shall be the certificate of incorporation and bylaws of Baxalta.

(b) Baxalta’s Directors and Officers. On or prior to the Distribution Date, Baxter and Baxalta shall take all necessary actions so that as of the Effective Time: (i) the directors and executive officers of Baxalta shall be those set forth in the Information Statement mailed to the Record Holders prior to the Effective Time, unless otherwise agreed by the Parties; and (ii) Baxalta shall have such other officers as Baxalta shall appoint.

(c) NYSE Listing. Baxalta shall prepare and file, and shall use commercially reasonable efforts to have approved prior to the Effective Time, an application for the listing of the Baxalta Common Stock to be distributed in the Distribution and the shares of Baxalta Common Stock to be reserved for issuance pursuant to any director or employee benefit plan or arrangement on the NYSE (and such other stock exchanges as may be necessary or desirable), subject to official notice of distribution.

Section 2.02 The Separation . The Parties acknowledge that the Separation is intended to result in Baxalta owning the Baxalta Assets and assuming the Baxalta Liabilities as set forth below in this Article II and in the applicable Ancillary Agreements. Subject to Sections 2.03 , 2.04 and 2.05 , on or prior to the Distribution Date, in accordance with the plan of Separation for Baxalta:

(a) Transfer and Assignment of Baxalta Assets. Baxter shall, and shall cause the applicable Baxter Subsidiaries to, contribute, assign, transfer, convey and deliver to Baxalta or the applicable Baxalta Subsidiaries, and Baxalta or such Baxalta Subsidiaries shall accept from Baxter and the applicable Baxter Subsidiaries, all of Baxter’s and such Baxter Subsidiaries’ respective direct or indirect rights, title and interest in and to all of the Baxalta Assets, including all of the outstanding shares of capital stock or other ownership interests in the Transferred Entities, which shall result in Baxalta owning directly or indirectly all of the Transferred Entities (it being understood that if a Baxalta Asset shall be held by a Transferred Entity or a Subsidiary of a Transferred Entity, such Baxalta Asset may be assigned, transferred, conveyed and delivered for all purposes hereunder as a result of the transfer of all or substantially all of the equity interests in such Transferred Entity to Baxalta or a Baxalta Subsidiary).

(b) Acceptance and Assumption of Baxalta Liabilities. Baxalta and the applicable Baxalta Subsidiaries shall accept, assume and agree faithfully to perform, discharge and fulfill all of the Baxalta Liabilities in accordance with their respective terms, without regard for the manner in which or circumstances under which such Baxalta Liabilities arose or against whom they are asserted. Baxalta and the applicable

 

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Baxalta Subsidiaries shall be responsible for all Baxalta Liabilities, regardless of when or where such Baxalta Liabilities arose or arise, or whether the facts on which they are based occurred prior to, at or after the Effective Time, regardless of where or against whom such Baxalta Liabilities are asserted or determined (including any such Baxalta Liabilities arising out of claims made by Baxter’s or Baxalta’s respective Subsidiaries or Affiliates or by Representatives of Baxter or Baxalta or their respective Subsidiaries or Affiliates against either Party or any of its Subsidiaries or Affiliates) or whether asserted or determined prior to the Effective Time, and regardless of whether arising from or alleged to arise from negligence, gross negligence, willful misconduct, bad faith, recklessness, violation of Law, fraud or misrepresentation by either Party or any of its Subsidiaries or Affiliates or any of their respective Representatives. The assumption by Baxalta of the Baxalta Liabilities is in partial consideration for the Baxalta Assets being transferred to it in connection with the Separation.

(c) Transfer and Assignment of Baxter Assets. Baxter and Baxalta shall cause Baxalta and any Business Entity that shall be a Baxalta Subsidiary after the Effective Time to contribute, assign, transfer, convey and deliver to Baxter or a Business Entity designated by Baxter that shall be a Baxter Subsidiary after the Effective Time all of Baxalta’s and such Baxalta Subsidiary’s respective direct or indirect rights, title and interest in and to all Baxter Assets held by Baxalta or a Baxalta Subsidiary.

(d) Acceptance and Assumption of Baxter Liabilities. Baxter and the applicable Baxter Subsidiaries shall accept, assume and agree faithfully to perform, discharge and fulfill, all of the Baxter Liabilities held by Baxalta or any Business Entity that shall be a Baxalta Subsidiary after the Effective Time, and Baxter and the applicable Baxter Subsidiaries shall be responsible for all of such Baxter Liabilities in accordance with their respective terms, without regard for the manner in which or circumstances under which such Baxter Liabilities arose or against whom they are asserted. Baxter and the applicable Baxter Subsidiaries shall be responsible for all Baxter Liabilities, regardless of when or where such Baxter Liabilities arose or arise, or whether the facts on which they are based occurred prior to, at or after the Effective Time, regardless of where or against whom such Baxter Liabilities are asserted or determined (including any such Baxter Liabilities arising out of claims made by Baxter’s or Baxalta’s respective Subsidiaries or Affiliates or by Representatives of Baxter or Baxalta or their respective Subsidiaries or Affiliates) or whether asserted or determined prior to the Effective Time, and regardless of whether arising from or alleged to arise from negligence, gross negligence, willful misconduct, bad faith, recklessness, violation of Law, fraud or misrepresentation by either Party or any of its Subsidiaries or Affiliates or any of their respective Representatives.

Section 2.03 Deferred Baxalta Local Closings .

(a) Deferral of Certain Transfers of Baxalta Assets and Baxalta Liabilities. The Parties acknowledge that due to the requirements of applicable Laws, the need to obtain certain Consents from Governmental Authorities or for other business reasons, the Parties have agreed to defer until after the Effective Time the transfer of legal title to all

 

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or a portion of the Baxalta Assets and the assumption of all or a portion of the Baxalta Liabilities from Baxter or the applicable Baxter Subsidiary to Baxalta or the applicable Baxalta Subsidiary or designee in each of the jurisdictions listed on Schedule 2.03(a) (each, a “ Deferred Baxalta Local Business ”).

(b) Treatment of Deferred Baxalta Local Businesses. In each case as set forth in more detail in the International Transition Period Agreements and subject to the terms thereof, from and after the Effective Time, and until such time as the applicable Deferred Baxalta Local Business has been transferred to Baxalta or the applicable Baxalta Subsidiary or designee for the relevant jurisdiction, (i) the Deferred Baxalta Local Business shall be held by Baxter or, where applicable, by a Baxter Subsidiary or designee, on behalf of and for the benefit of Baxalta or, where applicable, a Baxalta Subsidiary or designee; (ii) Baxter or, where applicable, a Baxter Subsidiary or designee shall pay, perform and discharge fully when due and payable the Liabilities of the Deferred Baxalta Local Business; and (iii) insofar as reasonably practicable and to the extent permitted by applicable Law, Baxter or, where applicable, a Baxter Subsidiary or designee shall manage and operate the applicable Deferred Baxalta Local Business in accordance with the relevant International Transition Period Agreement and take such other actions as may reasonably be requested by Baxalta so that all the rewards and Liabilities relating to such Deferred Baxalta Local Business, including use, risk of loss, potential for gain and control over such Deferred Baxalta Local Business, shall inure from and after the Effective Time to Baxalta or a Baxalta Subsidiary or designee. As and to the extent described in the International Transition Period Agreements, (i) Baxter or, where applicable, a Baxter Subsidiary or designee shall remit to Baxalta or a Baxalta Subsidiary or designee the amounts due in connection with the performance of each Deferred Baxalta Local Business; and (ii) Baxalta or, where applicable, a Baxalta Subsidiary or designee shall reimburse Baxter or a Baxter Subsidiary or designee for all payments made in connection with the performance of each Deferred Baxalta Local Business and the discharge of any Liabilities in connection therewith.

(c) Transfers of Certain Deferred Baxalta Local Businesses. The International Commercial Operations Agreements provides additional detail on the timing of the transfers of each Deferred Baxalta Local Business to (or on behalf of) Baxalta or any Baxalta Subsidiary, and the terms of this Section 2.03 are subject to the terms and conditions set forth in the International Commercial Operations Agreement (including with respect to Baxter’s ability, upon certain conditions, to wind down any such Deferred Baxalta Local Business in accordance with the provisions of the applicable International Transition Period Agreement).

Section 2.04 Delayed Transfers of Baxalta Assets and Baxalta Liabilities .

(a) Delayed Baxalta Transfers. Subject to Section 2.03 and the terms of the International Transition Period Agreements, if and to the extent that the valid, complete and perfected transfer or assignment to Baxalta or a Baxalta Subsidiary or designee of any Baxalta Assets or the assumption by Baxalta or a Baxalta Subsidiary or designee of any Baxalta Liabilities would be a violation of applicable Law or requires a Consent that has not been obtained as of or prior to the Effective Time or the local closing of a

 

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Deferred Baxalta Local Business under the terms of the applicable International Transition Period Agreement, as applicable, then, unless the Parties shall otherwise mutually agree, the transfer or assignment to Baxalta or the applicable Baxalta Subsidiary or designee of such Baxalta Assets or the assumption by Baxalta or the applicable Baxalta Subsidiary or designee of such Baxalta Liabilities shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Consent is obtained (any such Baxalta Asset, a “ Delayed Baxalta Asset ” and any such Baxalta Liability, a “ Delayed Baxalta Liability ”). Notwithstanding the foregoing, any Delayed Baxalta Assets or Delayed Baxalta Liabilities shall continue to constitute Baxalta Assets or Baxalta Liabilities, respectively, for all other purposes of this Agreement.

(b) Treatment of Delayed Baxalta Assets and Delayed Baxalta Liabilities. Subject to Section 2.03 and the terms of the International Transition Period Agreements, from and after the Effective Time, Baxter shall, and shall cause the Baxter Subsidiaries to, hold on behalf of and for the benefit of Baxalta or, where applicable, a Baxalta Subsidiary or designee, all Delayed Baxalta Assets, and to pay, perform and discharge fully all Delayed Baxalta Liabilities. Baxalta or the applicable Baxalta Subsidiary or designee shall promptly reimburse Baxter or the applicable Baxter Subsidiaries for all payments made in connection with the performance and discharge of such Delayed Baxalta Liabilities. Baxter shall use commercially reasonable efforts to cause each such Delayed Baxalta Asset or Delayed Baxalta Liability to be held by Baxter or, where applicable, a Baxter Subsidiary or designee for, the reward and burden of Baxalta or the applicable Baxalta Subsidiary or designee. Baxter and Baxalta shall, and shall cause their respective Subsidiaries to, take such other actions as may be reasonably requested by the other Party or any of its Subsidiaries (in each case, at Baxalta’s cost and expense) in accordance with the provisions of this Agreement so that all the rewards and burdens relating to such Delayed Baxalta Asset and Delayed Baxalta Liability, including expenses, risk of loss, potential for gain and control of such Delayed Baxalta Asset and Delayed Baxalta Liability, shall inure from and after the Effective Time to Baxalta or the applicable Baxalta Subsidiaries or designees, without recourse of any kind to Baxter or any Baxter Subsidiary or designee. Baxalta shall pay or cause to be paid by a Baxalta Subsidiary any registration fees or recordation fees required to be paid to a Governmental Authority in connection with the transfer of a Delayed Baxalta Asset or a Delayed Baxalta Liability.

(c) Transfer of Delayed Baxalta Assets and Delayed Baxalta Liabilities. When and as the Parties agree, subject to Section 2.03 and the terms of the International Transition Period Agreements and provided that, as of such agreed-upon time (i) the necessary Consents for each Delayed Baxalta Asset or Delayed Baxalta Liability shall have been obtained; and (ii) the assumption by Baxalta or a Baxalta Subsidiary or designee of each Delayed Baxalta Asset or Delayed Baxalta Liability is not at such time a violation of applicable Law (or, in the case of a Deferred Baxalta Local Business, if later, upon the consummation of the local closing of such Deferred Baxalta Local Business):

(A) Baxter shall, and shall cause each Baxter Subsidiary to, contribute, assign, transfer, convey and deliver to Baxalta or such Baxalta Subsidiaries or designees as Baxalta may determine, and Baxalta shall, and shall cause such Baxalta Subsidiaries or designees to, accept from Baxter and the Baxter Subsidiaries all of Baxter’s and the Baxter Subsidiaries’ respective rights, title and interest in and to such Delayed Baxalta Assets; and

 

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(B) Baxalta shall, and shall cause such Baxalta Subsidiaries or designees as Baxalta may determine to, accept, assume and agree faithfully to perform, discharge and fulfill such Delayed Baxalta Liabilities, in accordance with their terms.

Section 2.05 Delayed Transfers of Baxter Assets and Baxter Liabilities .

(a) Delayed Baxter Transfers. If and to the extent that the valid, complete and perfected transfer or assignment to Baxter or a Baxter Subsidiary or designee of any Baxter Assets or the assumption by Baxter or a Baxter Subsidiary or designee of any Baxter Liabilities would be a violation of applicable Law or require a Consent that has not been obtained as of or prior to the Effective Time or the local closing of a Deferred Baxalta Local Business under the terms of the applicable International Transition Period Agreement, as applicable, then, unless the Parties shall otherwise mutually agree, the transfer or assignment to Baxter or the applicable Baxter Subsidiary or designee of such Baxter Assets or the assumption by Baxter or the applicable Baxter Subsidiary or designee of such Baxter Liabilities shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Consent is obtained (any such Baxter Asset, a “ Delayed Baxter Asset ” and any such Baxter Liability, a “ Delayed Baxter Liability ”). Notwithstanding the foregoing, any Delayed Baxter Assets or Delayed Baxter Liabilities shall continue to constitute Baxter Assets or Baxter Liabilities, respectively, for all other purposes of this Agreement.

(b) Treatment of Delayed Baxter Assets and Delayed Baxter Liabilities. Except as otherwise provided herein or in any Ancillary Agreement, from and after the Effective Time, Baxalta shall, and shall cause the Baxalta Subsidiaries or designees to, hold on behalf of and for the benefit of Baxter or, where applicable, a Baxter Subsidiary or designee, all Delayed Baxter Assets, and to pay, perform and discharge fully all Delayed Baxter Liabilities. Baxter or the applicable Baxter Subsidiary or designee shall promptly reimburse Baxalta or the applicable Baxalta Subsidiaries or designees for all payments made in connection with the performance and discharge of such Delayed Baxter Liabilities. Baxalta shall use commercially reasonable efforts to cause each such Delayed Baxter Asset or Delayed Baxter Liability to be held by Baxalta or, where applicable, a Baxalta Subsidiary or designee, for the reward and burden of Baxter or the applicable Baxter Subsidiary or designee. Baxter and Baxalta shall, and shall cause their respective Subsidiaries to, take such other actions as may be reasonably requested by the other Party or any of its Subsidiaries in accordance with the provisions of this Agreement so that all the rewards and burdens relating to such Delayed Baxter Asset and Delayed Baxter Liability, including expenses, risk of loss, potential for gain and control of such Delayed Baxter Asset and Delayed Baxter Liability, shall inure from and after the Effective Time to Baxter or the applicable Baxter Subsidiaries or designees, without

 

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recourse of any kind to Baxalta or any Baxalta Subsidiary. Baxter shall pay or cause to be paid by a Baxter Subsidiary any registration fees or recordation fees required to be paid to a Governmental Authority in connection with the transfer of a Delayed Baxter Asset or a Delayed Baxter Liability.

(c) Transfer of Delayed Baxter Assets and Delayed Baxter Liabilities. When and as the Parties agree and provided that, as of such agreed-upon time (i) the necessary Consents for each Delayed Baxter Asset or Delayed Baxter Liability shall have been obtained; and (ii) the assumption by Baxter or a Baxter Subsidiary or designee of each Delayed Baxter Asset or Delayed Baxter Liability is not at such time a violation of applicable Law:

(A) Baxalta shall, and shall cause each Baxalta Subsidiary to, contribute, assign, transfer, convey and deliver to Baxter or such Baxter Subsidiaries or designees as Baxter may determine, and Baxter shall, and shall cause such Baxter Subsidiaries or designees to, accept from Baxalta and the Baxalta Subsidiaries all of Baxalta’s and the Baxalta Subsidiaries’ respective rights, title and interest in and to such Delayed Baxter Assets; and

(B) Baxter shall, and shall cause such Baxter Subsidiaries or designees as Baxter may determine to, accept, assume and agree faithfully to perform, discharge and fulfill such Delayed Baxter Liabilities, in accordance with their terms.

Section 2.06 Ancillary Agreements . Prior to the Effective Time, the Parties shall execute and deliver, or where applicable shall cause their respective Subsidiaries to execute and deliver, each Ancillary Agreement to which they are intended to be a party; provided , however , that if this Article II calls for an Ancillary Agreement to be executed and delivered on or as of a later time, it shall be executed and delivered on or as of such later time.

Section 2.07 Disclaimer of Representations and Warranties .

(a) EACH OF BAXTER (ON BEHALF OF ITSELF AND EACH OF THE BAXTER SUBSIDIARIES) AND BAXALTA (ON BEHALF OF ITSELF AND EACH OF THE BAXALTA SUBSIDIARIES) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR OTHERWISE, IS: (X) REPRESENTING OR WARRANTING TO ANY OTHER PARTY HERETO OR THERETO IN ANY WAY AS TO (I) THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED, LICENSED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY; (II) ANY APPROVALS OR NOTIFICATIONS REQUIRED IN CONNECTION HEREWITH OR THEREWITH; (III) THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY; (IV) THE ABSENCE OR PRESENCE OF ANY DEFENSES TO OR RIGHT OF SETOFF AGAINST OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY PROCEEDING OR OTHER ASSET, INCLUDING ANY

 

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ACCOUNTS RECEIVABLE, OF EITHER PARTY; OR (V) THE LEGAL SUFFICIENCY OF ANY CONVEYANCE AND ASSUMPTION INSTRUMENTS OR ANY OTHER ANCILLARY AGREEMENT TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING OF SUCH CONVEYANCE AND ASSUMPTION INSTRUMENTS OR SUCH OTHER ANCILLARY AGREEMENTS; OR (Y) MAKING ANY OTHER REPRESENTATIONS OR GRANTING ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY PATENTS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THIS AGREEMENT OR IN ANY ANCILLARY AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED OR LICENSED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES OR LICENSEES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (A) ANY CONVEYANCE AND ASSUMPTION INSTRUMENT OR ANY OTHER ANCILLARY AGREEMENT MAY PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ALL SECURITY INTERESTS; AND (B) ANY NECESSARY CONSENTS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS, AGREEMENTS, SECURITY INTERESTS OR JUDGMENTS ARE NOT COMPLIED WITH.

(b) Each of Baxter (on behalf of itself and each of the Baxter Subsidiaries) and Baxalta (on behalf of itself and each of the Baxalta Subsidiaries) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.07(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Baxter or any of the Baxter Subsidiaries, on the one hand, and Baxalta or any of the Baxalta Subsidiaries, on the other hand, are jointly or severally liable for any Baxalta Liability or any Baxter Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.

(c) Baxalta hereby waives compliance by itself and each and every Baxalta Subsidiary with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Baxalta Assets to Baxalta or a Baxalta Subsidiary.

 

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(d) Baxter hereby waives compliance by itself and each and every Baxter Subsidiary with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any and all of the Baxter Assets to Baxter or a Baxter Subsidiary.

Section 2.08 Credit Facilities; Financing Arrangements; Baxalta Cash Distribution; Use of Proceeds; Use of Retained Baxalta Common Stock .

(a) Credit Facilities. On or about the Distribution Date, Baxter and Baxalta shall enter into the Baxalta Credit Facility in substantially the form and on substantially the terms provided to Baxter prior to the Effective Time. Baxter and Baxalta agree that Baxter and each of the Baxter Subsidiaries shall have no obligations (including any guarantees) under the Baxalta Credit Facility.

(b) Financing Arrangements. Prior to the Effective Time, the Financing Arrangements shall have been consummated. Baxter and Baxalta agree to take all necessary actions to assure the full release and discharge of Baxter and each of the Baxter Subsidiaries from all obligations thereunder as of no later than the Effective Time.

(c) Baxalta Cash Distribution. Prior to the Effective Time, Baxalta shall make a cash distribution to Baxter in an amount equal to approximately $4 billion in connection with the Separation and the Distribution (the “ Baxalta Cash Distribution ”). This distribution shall be in partial consideration for the transfer of Baxalta assets to Baxalta in connection with the Separation whenever made.

(d) Use of Proceeds from Baxalta Cash Distribution. As promptly as practicable following the Baxalta Cash Distribution, but in no event later than eighteen (18) months after the Effective Time, Baxter will transfer the Baxalta Cash Amount pursuant to one or more of the following:

(i) to shareholders through the payment of (A) dividends, including regular quarterly dividends or (B) redemptions pursuant to existing, amended, or future stock repurchase programs, including pursuant to open market stock repurchases, accelerated share repurchases, or block purchases;

(ii) to creditors (which may or may not include Affiliates) in full or partial satisfaction of outstanding Baxter debt, including the payment of interest and associated fees, such as consent fees and premiums in excess of the face amount of an instrument, as well as principal and trade payables that have or will have arisen in the ordinary course of business; provided that all or a substantial portion of the Baxter debt to be retired will not have been issued in anticipation of the Separation, but a portion of such debt may be comprised of refinanced debt or other debt issued following Baxter’s public announcement of the Separation to the extent that any such debt would have been incurred or refinanced in the same amount if the Separation were not to be consummated, albeit with different terms; or

(iii) to the Baxter International Inc. and Subsidiaries Pension Plan.

 

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(e) Distribution of Retained Baxalta Common Stock. Baxter intends to transfer all of its remaining shares of Baxalta Common Stock not later than eighteen (18) months after the Effective Time pursuant to one or more of the following:

(i) to creditors (which may or may not include Affiliates) to retire outstanding Baxter debt, including the payment of interest and associated fees, such as consent fees and premiums in excess of the face amount of an instrument, as well as principal, and trade payables that have or will have arisen in the ordinary course of business;

(ii) to the Baxter International Inc. and Subsidiaries Pension Plan the Pension Plan, or to satisfy any obligation thereunder; or

(iii) to the extent not transferred pursuant to Sections 2.08(e)(ii) or (iii) , to shareholders of Baxter as (A) dividends, including regular quarterly dividends or (B) in redemption of outstanding Baxter Common Shares pursuant to existing, amended, or future stock repurchase programs;

provided that, in the event that Baxter determines that market conditions and sound business judgment do not support the disposition of any portion of the Retained Baxalta Common Stock during the 18-Month Period pursuant to Sections 2.08(e)(i) , (ii) , or (iii) , Baxter will dispose of any remaining shares of Retained Baxalta Common Stock in all events no later than the five-year anniversary of the Distribution.

(f) Preparation of Materials. Prior to the Effective Time, Baxter and Baxalta shall cooperate in the preparation of all materials as may be necessary or advisable to execute the Baxalta Credit Facility and the Financing Arrangements, including rating agency presentations necessary to obtain the requisite ratings needed to secure the financing under any of the Financing Arrangements.

Section 2.09 Termination of Agreements .

(a) Termination of Agreements Between Baxter and Baxalta. Except as set forth in Section 2.09(b) , the Parties agree that (i) all agreements, arrangements, commitments, courses of dealing or understandings, whether or not in writing, entered into prior to the Effective Time between or among Baxalta or a Baxalta Subsidiary, on the one hand, and Baxter or a Baxter Subsidiary, on the other hand, shall (except as set forth in clause (ii)) be terminated effective as of immediately prior to the Effective Time (including any provision thereof which purports to survive termination); and (ii) all agreements, arrangements, commitments, courses of dealing or understandings, whether or not in writing, entered into prior to a local closing of a Deferred Baxalta Local Business between or among a Transferred Entity that shall be transferred to Baxalta or a Baxalta Subsidiary after the Effective Time as part of a local closing of a Deferred Baxalta Local Business, on the one hand, and Baxter or a Baxter Subsidiary, on the other hand, shall be terminated effective as of immediately prior to such local closing (including any provision thereof which purports to survive termination); provided that the

 

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provisions of this Section 2.09(a) shall not terminate any rights or obligations (A) between Baxter and any of the Baxter Subsidiaries; or (B) between Baxalta and any of the Baxalta Subsidiaries. For the avoidance of doubt, no Party or any Subsidiary thereof shall have any Liability to any other Party or any of its Subsidiaries based upon, arising out of or resulting from any agreement, arrangement, commitment, course of dealing or understanding terminated in accordance with this Section 2.09(a) , and any such Liability is hereby irrevocably canceled, released and waived effective as of the time of such termination.

(b) Exceptions. The provisions of Section 2.09(a) shall not apply to any of the following agreements, arrangements, commitments or understandings (or to any of the provisions thereof): (i) this Agreement and the Ancillary Agreements; (ii) any agreements, arrangements, commitments or understandings listed or described on Schedule 2.09(b)(ii) ; (iii) any agreements, arrangements, commitments or understandings to which any Third Party is a party; and (iv) any agreements, arrangements, commitments or understandings, including any Mixed Contracts, to which any non-wholly owned Subsidiary of Baxter or Baxalta, as the case may be, is a party (it being understood that directors’ qualifying shares or similar interests shall be disregarded for purposes of determining whether a Subsidiary is wholly owned). To the extent that the rights and obligations of Baxter or a Baxter Subsidiary under any agreements, arrangements, commitments or understandings not terminated under this Section 2.09 constitute Baxalta Assets or Baxalta Liabilities, they shall be assigned or assumed by Baxalta or the applicable Baxalta Subsidiary or designee pursuant to this Agreement.

Section 2.10 Settlement of Accounts between Baxter and Baxalta .

(a) Except as otherwise set forth on Schedule 2.10 , Baxter and Baxalta shall cause all intercompany debt and notes (i) as to which there are no Third Parties; and (ii) that are between Baxter or a Baxter Subsidiary, on the one hand, and Baxalta or a Baxalta Subsidiary, on the other hand, that exist as of immediately prior to the Effective Time (or, in the case of any Deferred Baxalta Local Business, as of immediately prior to the Local Closing Date), as of immediately prior to the Effective Time (or, as applicable, such Local Closing Date), to be settled, capitalized or cancelled so that such intercompany debt and notes are no longer between Baxter or a Baxter Subsidiary, on the one hand, and Baxalta or a Baxalta Subsidiary, on the other hand, in each case in the manner determined prior to the Effective Time (or, as applicable, such Local Closing Date) by duly authorized representatives of Baxter and Baxalta. Intercompany trade and other current payables and receivables (excluding the current portion of intercompany debt and notes) that exist as of immediately prior to the Effective Time (or, in the case of any Deferred Baxalta Local Business, as of immediately prior to the Local Closing Date) will be settled in the normal course of business under current customary terms that apply to non-intercompany trade payables and receivables.

(b) Baxter and Baxalta each agrees to take, or cause their respective Subsidiaries to take, prior to the Effective Time (or, in the case of any Deferred Baxalta Local Business, as prior to the Local Closing Date), all actions necessary to amend all Baxalta Contracts governing each bank and brokerage account owned by Baxalta or a

 

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Baxalta Subsidiary (collectively, the “ Baxalta Accounts ”), so that such Baxalta Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to, hereinafter “ linked ”) to any bank or brokerage account owned by Baxter or a Baxter Subsidiary (collectively, the “ Baxter Accounts ”) are de-linked from the Baxter Accounts effective at or prior to the Effective Time (or, as applicable, at or prior to the Local Closing Date).

(c) With respect to any outstanding checks issued by Baxter, Baxalta, or any of their respective Subsidiaries prior to the Effective Time (or, in the case of any Transferred Entity transferred as part of a Deferred Baxalta Local Business, prior to the Local Closing Date), such outstanding checks shall be honored following the Effective Time (or, as applicable, following the Local Closing Date) by the Person owning the account on which the check is drawn.

(d) As between Baxter and Baxalta (and their respective Subsidiaries) all payments and reimbursements received after the Effective Time by either Party (or any of its Subsidiaries) in respect or satisfaction of a business, Asset or Liability of the other Party (or any of its Subsidiaries), shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, as promptly as commercially practicable or as otherwise agreed between the Parties (including, in the case of any Deferred Baxalta Local Business, in accordance with the International Commercial Operations Agreement), upon receipt by such Party of any such payment or reimbursement, such Party shall pay over, or shall cause its applicable Subsidiary to pay over, to the other Party the amount of such payment or reimbursement without right of set-off.

(e) The Parties agree that, prior to the Effective Time, Baxter or any Baxter Subsidiary may, unless and except the Parties have agreed otherwise in writing, withdraw any and all cash or cash equivalents from the Baxalta Accounts for the benefit of Baxter or any Baxter Subsidiary and any such cash or cash equivalents so withdrawn shall be a Baxter Asset notwithstanding anything to the contrary contained herein.

Section 2.11 Novation of Liabilities; Release of Guarantees .

(a) Novation of Baxalta Liabilities.

(i) Each of Baxter and Baxalta, at the request of the other Party, shall use commercially reasonable efforts to obtain, or cause to be obtained, any Consent, substitution, approval or amendment required to novate or assign all Baxalta Liabilities and obtain in writing the unconditional release of Baxter and each Baxter Subsidiary that is a party to any such arrangements, so that, in any such case, Baxalta and the designated Baxalta Subsidiaries shall be solely responsible for such Baxalta Liabilities; provided , however , that, except as otherwise expressly provided in the Ancillary Agreements, neither Baxter nor Baxalta (nor any of their respective Subsidiaries) shall be obligated to contribute any capital, pay any consideration, grant any concession or incur any additional Liability to any Third Party other than ordinary and customary fees to a Governmental Authority (which shall be payable by Baxalta) from whom such Consents, substitutions, approvals, amendments, terminations or releases are requested.

 

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(ii) If Baxter or Baxalta is unable to obtain, or to cause to be obtained, any such required Consent, substitution, approval, amendment, termination or release, Baxter or the applicable Baxter Subsidiary shall continue to be bound by such arrangement and, unless not permitted by the terms thereof or by Law, Baxalta shall, as agent or subcontractor for Baxter or such Baxter Subsidiary, as the case may be, pay, perform and discharge fully all the obligations or other Liabilities of Baxter or such Baxter Subsidiary, as the case may be, that constitute Baxalta Liabilities thereunder from and after the Effective Time. Baxalta or the applicable Baxalta Subsidiary or designee shall promptly reimburse Baxter or the applicable Baxter Subsidiaries for all payments made in connection with the performance and discharge of any Baxalta Liabilities. Baxter shall cause each Baxter Subsidiary without further consideration, to pay and remit, or cause to be paid or remitted, to Baxalta, promptly all money, rights and other consideration received by it or a Baxter Subsidiary in respect of Baxalta’s performance as agent or subcontractor for Baxter or such Baxter Subsidiary, as the case may be, with respect to such Liabilities of Baxter or the applicable Baxter Subsidiary (unless any such consideration is a Baxter Asset). Subject to Section 2.03 , with respect to the local closing of a Deferred Baxalta Local Business, if and when any such Consent, substitution, approval, amendment, termination or release shall be obtained or the obligations under such arrangements shall otherwise become assignable or able to be novated, Baxter or the applicable Baxter Subsidiary shall promptly assign or novate, or cause to be assigned or novated, all its obligations and other Liabilities thereunder or any obligations of Baxter or a Baxter Subsidiary to Baxalta or its designated Baxalta Subsidiary without payment of further consideration and Baxalta or such Baxalta Subsidiary shall, without the payment of any further consideration, assume such obligations.

(b) Novation of Baxter Liabilities.

(i) Each of Baxter and Baxalta, at the request of the other Party, shall use commercially reasonable efforts to obtain, or cause to be obtained, any Consent, substitution, approval or amendment required to novate or assign all Baxter Liabilities and obtain in writing the unconditional release of Baxalta and each Baxalta Subsidiary that is a party to any such arrangements, so that, in any such case, Baxter and the designated Baxter Subsidiaries shall be solely responsible for such Baxter Liabilities; provided , however , that, except as otherwise expressly provided in the Ancillary Agreements, neither Baxter nor Baxalta (nor any of their respective Subsidiaries) shall be obligated to contribute any capital, pay any consideration, grant any concession or incur any additional Liability to any Third Party other than ordinary and customary fees to a Governmental Authority (which shall be payable by Baxter) from whom such Consents, substitutions, approvals, amendments, terminations or releases are requested.

 

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(ii) If Baxter or Baxalta is unable to obtain, or to cause to be obtained, any such required Consent, substitution, approval, amendment, termination or release, Baxalta or the applicable Baxalta Subsidiary shall continue to be bound by such arrangement and, unless not permitted by the terms thereof or by Law, Baxter shall, as agent or subcontractor for Baxalta or such Baxalta Subsidiary, as the case may be, pay, perform and discharge fully all the obligations or other Liabilities of Baxalta or such Baxalta Subsidiary, as the case may be, that constitute Baxter Liabilities, as the case may be, thereunder from and after the Effective Time. Baxter or the applicable Baxter Subsidiary or designee shall promptly reimburse Baxalta or the applicable Baxalta Subsidiaries for all payments made in connection with the performance and discharge of any Baxter Liabilities. Baxalta shall cause each Baxalta Subsidiary without further consideration, to pay and remit, or cause to be paid or remitted, to Baxter, promptly all money, rights and other consideration received by it or a Baxalta Subsidiary in respect of Baxter’s performance as agent or subcontractor for Baxalta or such Baxalta Subsidiary, as the case may be, with respect to such Liabilities of Baxalta or the applicable Baxalta Subsidiary (unless any such consideration is a Baxalta Asset). If and when any such Consent, substitution, approval, amendment, termination or release shall be obtained or the obligations under such arrangements shall otherwise become assignable or able to be novated, Baxalta or the applicable Baxalta Subsidiary shall promptly assign or novate, or cause to be assigned or novated, all its obligations and other Liabilities thereunder or any obligations of Baxalta or a Baxalta Subsidiary to Baxter or its designated Baxter Subsidiary without payment of further consideration and Baxter or such Baxter Subsidiary shall, without the payment of any further consideration, assume such obligations.

(c) Release of Guarantees.

(i) Except as otherwise expressly set forth in any International Transition Period Agreement, each of Baxter and Baxalta, at the request of the other Party, shall use commercially reasonable efforts, as soon as is reasonably practicable, to (A) have Baxalta or a Baxalta Subsidiary removed as guarantor of or obligor for any Baxter Liability to the extent that such guarantees or obligations relate to Baxter Liabilities, which shall include the removal of any Security Interest on or in any Baxalta Asset that may serve as collateral or security for any such Baxter Liability; and (B) have Baxter or a Baxter Subsidiary removed as guarantor of or obligor for any Baxalta Liability to the extent that such guarantees or obligations relate to Baxalta Liabilities, which shall include the removal of any Security Interest on or in any Baxter Asset that may serve as collateral or security for any such Baxalta Liability; provided , however , that, except as otherwise expressly provided in the Ancillary Agreements and without limiting the requirements under Section 2.11(c)(ii) , the use of commercially reasonable efforts under this Section 2.11(c)(i) shall not obligate either Baxter or Baxalta (nor any of their respective Subsidiaries) to contribute any capital, pay any consideration, grant any concession or incur any additional Liability to any Third Party other than ordinary and customary fees to a Governmental Authority (which shall be payable by the non-guarantor or non-obligor Party) from whom such Consents, substitutions, amendments, terminations or releases are requested.

 

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(ii) To the extent required to obtain a release from a guarantee or other obligation:

(A) of Baxter or a Baxter Subsidiary, Baxalta shall execute a guarantee agreement in the form of the existing guarantee or such other form as is agreed to by the relevant parties to such guarantee agreement, which agreement shall include the removal of any Security Interest on or in any Baxter Asset that may serve as collateral or security for any such Baxalta Liability, except to the extent that such existing guarantee contains representations, covenants or other terms or provisions either with which Baxalta (1) would be reasonably unable to comply or (2) would not reasonably be able to avoid breaching; and

(B) of Baxalta or a Baxalta Subsidiary, Baxter shall execute a guarantee agreement in the form of the existing guarantee or such other form as is agreed to by the relevant parties to such guarantee agreement, which agreement shall include the removal of any Security Interest on or in any Baxalta Asset that may serve as collateral or security for any such Baxter Liability, except to the extent that such existing guarantee contains representations, covenants or other terms or provisions either with which Baxter (1) would be reasonably unable to comply or (2) would not reasonably be able to avoid breaching.

(iii) With respect to the continuing guarantees or obligations which the Parties have agreed, subject to this Section 2.11(c)(iii) , will continue following the Effective Time, and with respect to which Baxter or Baxalta is unable to obtain, or to cause to be obtained, any such required removal or release as set forth in clauses (i) and (ii) of this Section 2.11(c) , (A) the Party or its relevant Subsidiary that has assumed the Liability underlying such guarantee or obligation shall use commercially reasonable efforts to prevent the guarantor or obligator from incurring any continuing Liability in respect of such guarantee or obligation, and shall indemnify and hold harmless the guarantor or obligor against or from any Liability arising from or relating thereto (in accordance with the provisions of Article IV ) and shall or shall cause one of its Subsidiaries, as agent or subcontractor for such guarantor or obligor, to pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder; and (B) except as otherwise expressly set forth in any International Transition Period Agreement, each of Baxter and Baxalta, on behalf of themselves and their respective Subsidiaries, agree not to renew or extend the term of, increase its obligations under, or transfer to a Third Party, any loan, guarantee, lease, contract or other obligation for which the other Party or such Party’s Subsidiaries is or may be liable unless the other Party consents in writing or unless all obligations of such other Party and the Subsidiaries of such other Party with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such other Party.

 

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Section 2.12 Mixed Contracts; Mixed Accounts .

(a) Mixed Contracts. Except as may otherwise be agreed by the Parties and except as otherwise contemplated by any International Transition Period Agreement, in the case of a Mixed Contract, the Parties shall use commercially reasonable efforts to cause such Mixed Contract to be: (i) assigned in relevant part to Baxalta or a Baxalta Subsidiary (or to Baxter or a Baxter Subsidiary if the contracting party is a Transferred Entity) if so assignable; (ii) appropriately amended, prior to, on or after the Effective Time (or, in the case of a Mixed Contract that inures to the reward or burden of both Baxter or a Baxter Subsidiary, on the one hand, and a Transferred Entity that shall be transferred to Baxalta or a Baxalta Subsidiary after the Effective Time as part of a local closing of a Deferred Baxalta Local Business under the terms of the applicable International Transition Period Agreement, on the other hand, on or after such local closing); or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or their respective Subsidiaries shall be entitled to the rights and benefits and shall assume the related portion of any obligations and Liabilities inuring to their respective businesses; provided , however , that in no event shall either Party or its respective Subsidiaries be required to assign or amend any Mixed Contract in its entirety or to assign a portion of any Mixed Contract that is not assignable or cannot be amended by its terms (including any terms imposing Consents or conditions on an assignment where such Consents or conditions have not been obtained or fulfilled). If any Mixed Contract cannot be so partially assigned, or cannot be amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Mixed Contract and such Mixed Contract is not replaced or otherwise addressed with suitable arrangements, Baxter and Baxalta shall, and shall cause each of their respective Subsidiaries to, take such other reasonable and permissible actions to cause (at Baxalta’s cost and expense): (A) the Assets associated with that portion of each Mixed Contract that relates to the Baxalta Business to be enjoyed by Baxalta or a Baxalta Subsidiary; (B) the Liabilities associated with that portion of each Mixed Contract that relates to the Baxalta Business to be borne by Baxalta or a Baxalta Subsidiary; (C) the Assets associated with that portion of each Mixed Contract that relates to the Baxter Business to be enjoyed by Baxter or a Baxter Subsidiary; and (D) the Liabilities associated with that portion of each Mixed Contract that relates to the Baxter Business to be borne by Baxter or a Baxter Subsidiary.

(b) Mixed Accounts. Except as may otherwise be agreed by the Parties and except as otherwise contemplated by any International Transition Period Agreement, the Parties shall not seek to assign any Mixed Account. Except as may otherwise be agreed by the Parties and except as otherwise contemplated by any International Transition Period Agreement, Baxter and Baxalta shall, and shall cause each of their respective Subsidiaries to, take such other reasonable and permissible actions to cause (i) the Assets associated with that portion of each Mixed Account that relate to the Baxter Business to be enjoyed by Baxter or a Baxter Subsidiary; (ii) the Liabilities associated with that portion of each Mixed Account that relate to the Baxter Business to be borne by Baxter or a Baxter Subsidiary; (iii) the Assets associated with that portion of each Mixed Account that relate to the Baxalta Business to be enjoyed by Baxalta or a Baxalta Subsidiary; and (iv) the Liabilities associated with that portion of each Mixed Account that relate to the Baxalta Business to be borne by Baxalta or a Baxalta Subsidiary.

 

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(c) No Payments. Except for payments required in accordance with the performance of the applicable Mixed Contract, nothing in this Section 2.12 shall require either Party or any of its Subsidiaries to make any payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any of the other Party’s Subsidiaries), incur any obligation or grant any concession for the benefit of the other Party or any of the other Party’s Subsidiaries, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Mixed Contracts or Mixed Accounts in accordance with this Section 2.12 ).

Section 2.13 Further Assurances .

(a) Additional Actions. Except as set forth in Section 3.04 and Article VIII , in addition to the actions specifically provided for elsewhere in this Agreement, each Party shall, and shall cause each of its respective Subsidiaries to, use commercially reasonable efforts, prior to and after the Effective Time to take, or cause to be taken, all actions, and to do, or cause to be done, all things, necessary or advisable under applicable Laws and agreements to consummate the transactions contemplated by this Agreement and the Ancillary Agreements as promptly as reasonably practicable (including, for the avoidance of doubt, the transfer of any Assets or Liabilities that are allocated to a Party hereunder and that have not yet been transferred); provided , however , that neither Baxter nor Baxalta (nor any of their respective Subsidiaries) shall be obligated under this Section 2.13(a) to pay any consideration, grant any concession or incur any additional Liability to any Third Party other than ordinary and customary fees paid to a Governmental Authority.

(b) Cooperation. Without limiting the foregoing and except to the extent otherwise contemplated in connection with a Deferred Baxalta Local Business under Section 2.03 , prior to and after the Effective Time, each Party shall, and shall cause each of its Subsidiaries to, cooperate with the other Party without any further consideration to execute and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all Conveyance and Assumption Instruments and to make all filings with, and to obtain all Consents of, any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument (including any Consents), and to take all such other actions as such Party may reasonably be requested to take by the other Party from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the transfers of the Baxalta Assets and the Baxter Assets and the assignment and assumption of the Baxalta Liabilities and the Baxter Liabilities as contemplated by this Agreement and the other transactions contemplated hereby and thereby; provided , however , that neither Baxter nor Baxalta (nor any of their respective Subsidiaries) shall be obligated under this Section 2.13(b) to pay any consideration, grant any concession or incur any additional Liability to any Third Party other than ordinary and customary fees paid to a Governmental Authority.

 

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(c) Misallocations. Except to the extent otherwise contemplated in connection with a Deferred Baxalta Local Business under Section 2.03 , a Delayed Baxalta Asset or Delayed Baxalta Liability under Section 2.04 or a Delayed Baxter Asset or Delayed Baxter Liability under Section 2.05 , in the event that, at any time or from time to time (whether prior to, at or after the Effective Time), one Party or any of its Subsidiaries shall receive or otherwise possess any Asset that is allocated to the other Party or any Subsidiary of such other Party pursuant to this Agreement or any Ancillary Agreement, the first Party shall promptly transfer, or cause its Subsidiary to transfer, such Asset to the Party so entitled thereto or such Party’s Subsidiary or designee and such Party or such Party’s Subsidiary or designee shall accept such Asset; provided that, the terms of this Section 2.13(c) are not intended to limit or otherwise modify in any way the Parties’ rights and obligations under this Agreement or the Tax Matters Agreement. Except to the extent otherwise contemplated in connection with a Deferred Baxalta Local Business under Section 2.03 , a Delayed Baxalta Asset or Delayed Baxalta Liability under Section 2.04 or a Delayed Baxter Asset or Delayed Baxter Liability under Section 2.05 , in the event that, at any time or from time to time (whether prior to, at or after the Effective Time), one Party or any of its Subsidiaries shall receive or otherwise assume any Liability that is allocated to the other Party or any Subsidiary of such other Party pursuant to this Agreement or any Ancillary Agreement, the first Party shall promptly transfer, or cause its Subsidiary to transfer, such Liability to the Party so entitled thereto or such Party’s Subsidiary or designee, and such Party or such Party’s Subsidiary or designee shall accept, assume and agree faithfully to perform such Liability; provided that, the terms of this Section 2.13(c) are not intended to limit or otherwise modify in any way the Parties’ rights and obligations under this Agreement or the Tax Matters Agreement.

Section 2.14 Transition Committee . Prior to the Effective Time, the Parties shall establish a transition committee (the “ Transition Committee ”) that shall consist of an equal number of members designated by Baxter and Baxalta at all times, with each Party having the right to replace the Transition Committee members delegated by it from time to time and taking such efforts as are necessary from time to time to cause the Transition Committee to consist of an equal number of representatives of Baxter and Baxalta (in a total number determined from time to time by the Parties). The Transition Committee shall be responsible for monitoring and managing all matters related to any of the transactions contemplated by this Agreement or any Ancillary Agreements. The Transition Committee shall have the authority to (a) establish one or more subcommittees from time to time as it deems appropriate or as may be described in any Ancillary Agreements, with each such subcommittee comprised of an equal number of members representing each Party, and each such subcommittee having such scope of responsibility as may be determined by the Transition Committee from time to time; (b) delegate to any such committee any of the powers of the Transition Committee; and (c) to combine, modify the scope of responsibility of, and disband any such subcommittees, and to modify or reverse any such delegations. The Transition Committee shall establish general procedures for managing the responsibilities delegated to it under this Section 2.14 , and may modify such procedures from time to time. All decisions by the Transition Committee or any subcommittee thereof shall be effective only with majority approval, and any such approval must include the approval of at least one member of the Transition Committee designated by Baxter and at least one member of the Transition Committee designated by Baxalta. The Parties shall utilize the procedures set forth in Article VII to resolve any matters as to which the Transition Committee is not able to reach a decision.

 

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ARTICLE III

THE DISTRIBUTION

Section 3.01 Actions Prior to the Distribution . Prior to the Effective Time and subject to the terms and conditions set forth herein, the Parties shall take, or cause to be taken, the following actions in connection with the Distribution:

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

(b) Securities Law Matters. Baxalta shall file any amendments or supplements to the Registration Statement as may be necessary or advisable in order to cause the Registration Statement to become and remain effective as required by the Commission or federal, state or other applicable securities Laws. Baxter and Baxalta shall cooperate in preparing, filing with the Commission and causing to become effective registration statements or amendments thereof which are required to reflect the establishment of, or amendments to, any employee benefit and other plans necessary or advisable in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. Baxter and Baxalta shall take all such action as may be necessary or advisable under the securities or blue sky Laws of the United States (and any comparable Laws under any non-U.S. jurisdiction) in connection with the transactions contemplated by this Agreement and the Ancillary Agreements.

(c) Mailing of Information Statement or Notice of Internet Availability of Information Statement. Baxter shall, as soon as is reasonably practicable after the Registration Statement is declared effective under the Exchange Act and the board of directors of Baxter has approved the Distribution, cause the Information Statement or a notice of Internet availability of the Information Statement to be mailed to the Record Holders.

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

(e) Stock-Based Employee Benefit Plans. At or prior to the Effective Time, Baxter and Baxalta shall take all actions as may be necessary to approve the stock-based employee benefit plans of Baxalta in order to satisfy the requirements of Rule 16b-3 under the Exchange Act and the applicable rules and regulations of the NYSE.

(f) Satisfying Conditions to Distribution. Baxter and Baxalta shall cooperate to cause the conditions to the Distribution set forth in this Article III to be satisfied and to effect the Distribution at the Effective Time.

 

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Section 3.02 The Distribution . Subject to the terms and conditions contained herein:

(a) Delivery of Baxalta Common Stock. On or prior to the Distribution Date, Baxter shall deliver to the Agent, for the benefit of the Record Holders, book-entry transfer authorizations for such number of the outstanding shares of Baxalta Common Stock as is necessary to effect the Distribution.

(b) Effective Time of Distribution. The Distribution shall be effective at the Effective Time.

(c) Distribution of Shares and Cash. Baxter shall instruct the Agent to distribute, as soon as practicable following the Effective Time, to each Record Holder the following:

(i) one share of Baxalta Common Stock for each Baxter Common Share held by such Record Holder as of the Record Date (the number of shares of Baxalta Common Stock received for each Baxter Common Share held by such Record Holder as of the Record Date, the “ Distribution Ratio ”); and

(ii) cash, if applicable, in lieu of fractional shares obtained in the manner provided in Section 3.03 .

(d) Transfer Authorizations. Baxalta agrees to provide all book-entry transfer authorizations for shares of Baxalta Common Stock that Baxter or the Agent shall require (after giving effect to Section 3.03 ) in order to effect the Distribution.

Section 3.03 Fractional Shares; Unclaimed Shares .

(a) No Fractional Shares. Notwithstanding anything herein to the contrary, no fractional shares of Baxalta Common Stock shall be issued in connection with the Distribution, and any such fractional share interests to which a Record Holder would otherwise be entitled shall not entitle such Record Holder to vote or to any other rights as a shareholder of Baxalta. In lieu of any such fractional shares, each Record Holder who, but for the provisions of this Section 3.03 , would be entitled to receive a fractional share interest of Baxalta Common Stock pursuant to the Distribution, shall be paid cash, without any interest thereon, as hereinafter provided. Baxter shall instruct the Agent to determine the number of whole shares and fractional shares of Baxalta Common Stock allocable to each Record Holder, to aggregate all such fractional shares into whole shares, to sell the whole shares obtained thereby in the open market at the then-prevailing prices on behalf of each Record Holder who otherwise would be entitled to receive fractional share interests and to distribute to each such Record Holder his, her or its ratable share of the total proceeds of such sale, after making appropriate deductions of the amounts required for U.S. federal income tax withholding purposes and after deducting any applicable transfer Taxes and the costs and expenses of such sale and distribution, including brokers fees and commissions. The sales of fractional shares shall occur as soon after the Effective Time as practicable as determined by the Agent. None of Baxter, Baxalta or the Agent shall guarantee any minimum sale price for such fractional shares. Neither Baxter nor Baxalta shall pay any interest on the proceeds from the sale of fractional shares. The Agent shall have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the Agent nor the broker-dealers through which the aggregated fractional shares are sold shall be Affiliates of Baxter or Baxalta.

 

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(b) Beneficial Owners. Solely for purposes of computing fractional share interests pursuant to this Section 3.03 , the beneficial owner of Baxter Common Shares held of record in the name of a nominee in any nominee account shall be treated as the holder of record with respect to such shares.

(c) Unclaimed Stock or Cash. Any Baxalta Common Stock or cash in lieu of fractional shares with respect to Baxalta Common Stock that remain unclaimed by any Record Holder one hundred and eighty (180) days after the Distribution Date shall be delivered to Baxalta, Baxalta shall hold such Baxalta Common Stock for the account of such Record Holder and the Parties agree that all obligations to provide such Baxalta Common Stock and cash, if any, in lieu of fractional share interests shall be obligations of Baxalta, subject in each case to applicable escheat or other abandoned property Laws, and Baxter shall have no Liability with respect thereto.

Section 3.04 Sole Discretion of Baxter . Notwithstanding anything to the contrary set forth in this Agreement or in any Ancillary Agreement, until the Effective Time, Baxter shall have the sole discretion to determine whether to proceed with the Distribution and any and all terms of the Distribution, including the form, structure and terms of any transaction(s) or offering(s) to effect the Distribution and the timing of and conditions to the consummation of the Distribution. In addition, Baxter may, in its sole discretion, determine the Distribution Date and may, at any time and from time to time until the Effective Time, modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of the Distribution.

Section 3.05 Conditions to the Distribution .

(a) The Conditions. In addition to Baxter’s rights under Section 3.04 , the Distribution shall not occur unless each of the following conditions shall have been satisfied (or waived by Baxter, in whole or in part, in its sole discretion):

(i) the transfer of the Baxalta Assets (other than any Delayed Baxalta Asset and any Baxalta Assets deferred as part of a Deferred Baxalta Local Business) and Baxalta Liabilities (other than any Delayed Baxalta Liability and any Baxalta Liabilities deferred as part of a Deferred Baxalta Local Business) contemplated to be transferred from Baxter to Baxalta on or prior to the Distribution Date shall have occurred as contemplated by Section 2.02 ;

(ii) the Registration Statement shall have been declared effective by the Commission; no stop-order shall be in effect with respect thereto; no Proceeding for that purpose shall have been instituted or threatened by the Commission; and the Information Statement or notice of Internet availability of the Information Statement shall have been mailed to the Record Holders;

 

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(iii) Baxter shall have received the proceeds from the Baxalta Cash Distribution and shall be satisfied in its sole discretion that, as of the Effective Time, it shall have no further Liability whatsoever under the Baxalta Credit Facility or the Financing Arrangements (including in connection with any guarantees provided by Baxter or a Baxter Subsidiary thereunder);

(iv) the actions and filings with regard to securities and blue sky Laws of the United States (and any comparable Laws under any foreign jurisdictions) described in Section 3.01 shall have been taken and, where applicable, shall have become effective or been accepted;

(v) the Baxalta Common Stock to be distributed in the Distribution shall have been accepted for listing on the NYSE, subject to official notice of issuance;

(vi) no order, injunction or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Distribution or any of the other transactions related thereto, including the Separation, contemplated by this Agreement or any Ancillary Agreement shall be in effect;

(vii) Baxter shall have received an opinion from its outside tax counsel or other Third Party advisor that is in substance and form satisfactory to Baxter in its sole discretion;

(viii) Baxter shall have received a private letter ruling from the U.S. Internal Revenue Service regarding certain U.S. federal income tax consequences of the Separation, the Distribution and certain related transactions with respect to certain significant issues arising under Sections 332, 355, 361 or 368, or related provisions of the Code, and such ruling shall remain valid;

(ix) no events or developments shall have occurred or exist that, in the judgment of the board of directors of Baxter, in its sole discretion, makes it inadvisable to effect the Separation, the Distribution or the other transactions contemplated by this Agreement or any Ancillary Agreement;

(x) the Parties shall have executed and delivered or, where applicable, shall have caused their respective Subsidiaries to execute and deliver, the Ancillary Agreements that are contemplated by this Agreement to be executed and delivered on or prior to the Effective Time; and

(xi) an independent appraisal firm acceptable to Baxter shall have delivered one or more opinions to the board of directors of Baxter confirming the solvency and financial viability of Baxter and Baxalta after consummation of the Distribution, and such opinions shall be acceptable to Baxter in form and substance in Baxter’s sole discretion and such opinions shall not have been withdrawn or rescinded.

 

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(b) Conditions for Benefit of Baxter. The foregoing conditions are for the sole benefit of Baxter and not for the benefit of any other Person and shall not give rise to nor create any duty on the part of Baxter or Baxter’s board of directors to waive or not waive any such condition or in any way limit Baxter’s right to terminate this Agreement as set forth in Article VIII or alter the consequences of any such termination from those specified in such Article VIII . Any determination made by Baxter prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.05 shall be conclusive and binding on the Parties hereto.

ARTICLE IV

MUTUAL RELEASES; INDEMNIFICATION

Section 4.01 Releases .

(a) Baxalta Release of Baxter . Except as provided in Section 4.01(c) and in the provisos to this Section 4.01(a) , effective as of the Effective Time, Baxalta does hereby, for itself, each of the Baxalta Subsidiaries, and their respective successors and assigns, and, to the extent permitted by Law, all Persons who at any time prior to the Effective Time have been directors, officers, agents or employees of Baxalta or any of the Baxalta Subsidiaries (in each case, in their respective capacities as such), remise, release and forever discharge: (1) Baxter, each Baxter Subsidiary, and their respective successors and assigns; (2) all Persons who at any time are or have been shareholders, directors, officers, agents or employees of Baxter or a Baxter Subsidiary (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns; and (3) all Persons who at any time prior to the Effective Time are or have been shareholders, directors, officers, agents or employees of a Transferred Entity and who are not, as of immediately following the Effective Time, directors, officers or employees of Baxalta or a Baxalta Subsidiary or designated to be employees of Baxalta or a Baxalta Subsidiary upon the transfer to Baxalta of the applicable Deferred Baxalta Local Business, in each such case from:

(i) all Baxalta Liabilities; and

(ii) all Liabilities existing or arising: (A) in connection with the implementation of the Separation and the Distribution; or (B) from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Effective Time), in each case to the extent relating to, arising out of or resulting from the Baxalta Business, the Baxalta Assets or the Baxalta Liabilities;

provided , however , that nothing in this Section 4.01(a) shall release the Persons released in this Section 4.01(a) from: (x) any Liability (or right or obligation in respect thereof) expressly allocated to Baxter or a Baxter Subsidiary in this Agreement (including the indemnification obligations in Section 4.03 and the contribution obligations in Section 4.07 ), any Ancillary Agreement or any other agreement, arrangement, commitment or understanding to the extent

 

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expressly preserved by the express terms of this Agreement; (y) any intercompany receivables or payables that are not settled, capitalized, cancelled, assigned or assumed by Baxalta or one or more Baxalta Subsidiaries prior to the Effective Time; or (z) any Liability the release of which would result in the release of any Person other than the Persons released in this Section 4.01(a) , and, provided, further, that nothing in this Section 4.01(a) shall relieve any Person released in this Section 4.01(a) who, after the Effective Time, is a director, officer or employee of Baxalta or a Baxalta Subsidiary and is no longer a director, officer or employee of Baxter or a Baxter Subsidiary from Liabilities arising out of, relating to or resulting from his or her service as a director, officer or employee of Baxalta or any of the Baxalta Subsidiaries after the Effective Time.

(b) Baxter Release of Baxalta . Except as provided in Section 4.01(c) and in the proviso to this Section 4.01(b) , effective as of the Effective Time, Baxter does hereby, for itself, each of the Baxter Subsidiaries, and their respective successors and assigns, and, to the extent permitted by Law, all Persons who at any time prior to the Effective Time have been directors, officers, agents or employees of Baxter or any of the Baxter Subsidiaries (in each case, in their respective capacities as such), remise, release and forever discharge Baxalta, each Baxalta Subsidiary and their respective successors and assigns from:

(i) all Baxter Liabilities; and

(ii) all Liabilities existing or arising: (A) in connection with the implementation of the Separation and the Distribution; or (B) from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Effective Time), in each case to the extent relating to, arising out of or resulting from the Baxter Business, the Baxter Assets or the Baxter Liabilities;

provided , however , that nothing in this Section 4.01(b) shall release the Persons released in this Section 4.01(b) from: (x) any Liability (or right or obligation in respect thereof) expressly allocated to Baxalta or a Baxalta Subsidiary in this Agreement (including the indemnification obligations in Section 4.02 and the contribution obligations in Section 4.07 ), any Ancillary Agreement or any other agreement, arrangement, commitment or understanding to the extent expressly preserved by the express terms of this Agreement; (y) any intercompany receivables or payables that are not settled, capitalized, cancelled, assigned or assumed by Baxalta or one or more Baxalta Subsidiaries prior to the Effective Time; or (z) any Liability the release of which would result in the release of any Person other than the Persons released in this Section 4.01(b) .

(c) Baxter Obligations Not Affected . Nothing contained in this Article IV shall release Baxter or a Baxter Subsidiary from honoring its obligations existing immediately prior to the Effective Time to (i) indemnify any director, officer or employee of Baxalta or a Baxalta Subsidiary who was a director, officer or employee of Baxter or a Baxter Subsidiary on or prior to the Effective Time, to the extent such director, officer or employee was entitled in such capacity to such indemnification pursuant to obligations

 

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existing immediately prior to the Effective Time; provided that if a director of Baxalta receives indemnification payments from Baxter or Baxalta, as the case may be, with respect to a particular Liability for which such director is entitled to indemnification, such director shall not be entitled to receive indemnification payments from the other Party with respect to the same Liability to the extent of the indemnification payments previously received by such director from Baxter or Baxalta, as the case may be; provided , further , that (A) to the extent the events underlying an indemnification claim would give rise to a Baxter Liability, then Baxter shall have primary responsibility for the administration of the indemnification claim and (B) to the extent that the events underlying an indemnification claim would give rise to a Baxalta Liability, then Baxalta shall have primary responsibility for the administration of the indemnification claim; or (ii) provide any employment, post-employment or retirement benefits to any director, officer or employee of Baxalta or a Baxalta Subsidiary who was a director, officer or employee of Baxter or a Baxter Subsidiary on or prior to the Effective Time, to the extent such director, officer or employee was entitled to such benefits pursuant to obligations existing immediately prior to the Effective Time, except as otherwise provided in, and subject to the terms and conditions (including with respect to the adjustment, conversion or assignment of any agreements or awards) in, the Employee Matters Agreement.

(d) No Baxalta Claims . Without limiting the rights of either Party under Section 4.04 , 4.05 or 4.06 , Baxalta shall not make, and shall not permit a Baxalta Subsidiary to make, any claim or demand, or commence any Proceeding asserting any claim or demand, including any claim of contribution or indemnification, against Baxter or a Baxter Subsidiary or any other Person released pursuant to Section 4.01(a) , with respect to any Liabilities released pursuant to Section 4.01(a) .

(e) No Baxter Claims . Without limiting the rights of either Party under Section 4.04 , 4.05 or 4.06 , Baxter shall not make, and shall not permit a Baxter Subsidiary to make, any claim or demand, or commence any Proceeding asserting any claim or demand, including any claim of contribution or indemnification, against Baxalta or a Baxalta Subsidiary or any other Person released pursuant to Section 4.01(b) , with respect to any Liabilities released pursuant to Section 4.01(b) .

(f) Subsidiary Releases . At any time at or after the Effective Time, at the request of either Party, the other Party shall cause its Subsidiaries to execute and deliver releases reflecting the provisions of this Section 4.01 .

Section 4.02 Indemnification by Baxalta . Except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, Baxalta and each of the Baxalta Subsidiaries (each, a “ Baxalta Indemnifying Party ”) shall, to the fullest extent permitted by Law, indemnify, defend and hold harmless each of the Baxter Indemnitees from and against all Baxalta Indemnity Obligations; provided , however, that the indemnity in this Section 4.02 for Baxalta Liabilities shall not extend to a past, present or future director, officer, employee or agent of Baxalta or a Baxalta Subsidiary to the extent (a) such Person would not be eligible for indemnification under the terms of Baxter’s certificate of incorporation or bylaws in connection with the matter for which indemnification is sought due to action or inaction by such Person in connection with such matter or (b) the directors’ and officers’ insurance policy of Baxter would not cover such Person in connection with the matter for which indemnification is sought due to action or inaction by such Person in connection with such matter.

 

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Section 4.03 Indemnification by Baxter . Except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, Baxter and each of the Baxter Subsidiaries (each, a “ Baxter Indemnifying Party ”) shall, to the fullest extent permitted by Law, indemnify, defend and hold harmless each of the Baxalta Indemnitees from and against all Baxter Indemnity Obligations; provided , however , that the indemnity in this Section 4.03 for Baxter Liabilities shall not extend to a past, present or future director, officer, employee or agent of Baxter or a Baxter Subsidiary to the extent (a) such Person would not be eligible for indemnification under the terms of Baxalta’s certificate of incorporation or bylaws in connection with the matter for which indemnification is sought due to action or inaction by such Person in connection with such matter or (b) the directors’ and officers’ insurance policy of Baxalta would not cover such Person in connection with the matter for which indemnification is sought due to action or inaction by such Person in connection with such matter.

Section 4.04 Indemnification Obligations Net of Insurance Proceeds and Other Amounts .

(a) Insurance Proceeds and Other Amounts . The Parties intend that any Liability subject to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement: (i) shall be reduced by any Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnitee in respect of any indemnifiable Liability; (ii) shall not be increased to take into account any Tax costs incurred by the Indemnitee arising from any Indemnity Payments received from the Indemnifying Party (as defined below); and (iii) shall not be reduced to take into account any Tax benefit received by the Indemnitee arising from the incurrence or payment of any Indemnity Payment; provided that, in the event of any conflict between Sections 4.04(a)(ii) and 4.04(a)(iii) , on the one hand, and any term or provision of the Tax Matters Agreement, on the other hand, the Tax Matters Agreement shall control. Accordingly, the amount which any Person against whom a claim is made for indemnification in accordance with this Agreement (an “ Indemnifying Party ”) is required to pay to any Indemnitee shall be reduced by any Insurance Proceeds or any other amounts theretofore actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) by or on behalf of the Indemnitee in respect of the related Liability. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any Liability (an “ Indemnity Payment ”) and subsequently receives Insurance Proceeds or any other amounts in respect of the related Liability, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment (or such other amounts) received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or such other amounts (net of any out-of-pocket costs or expenses incurred in the collection thereof) had been received, realized or recovered before the Indemnity Payment was made.

 

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

Section 4.05 Procedures for Indemnification of Third Party Claims .

(a) Notice of Claims . If an Indemnitee receives notice of the assertion or commencement by a Third Party of any Proceeding against the Indemnitee with respect to which the Indemnitee believes that Baxalta (in the case of a Baxter Indemnitee) or Baxter (in the case of a Baxalta Indemnitee) is obligated to provide indemnification to such Indemnitee pursuant to this Agreement or any Ancillary Agreement (collectively, a “ Third Party Claim ”), such Indemnitee shall (if such notice is received following the date of this Agreement) give such Indemnifying Party Notice thereof within ten (10) days (or sooner if the nature of the Third Party Claim so requires) after becoming aware of such Third Party Claim. The Notice must describe the Third Party Claim in reasonable detail or, in the alternative, include copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give the Notice as provided in this Section 4.05(a) shall not relieve the related Indemnifying Party of its obligations under this Article IV , except to the extent that such Indemnifying Party is actually prejudiced by such failure to give the Notice in accordance with this Section 4.05(a) .

(b) Control of Defense . An Indemnifying Party may elect to defend (and seek to settle or compromise), at its own expense and with its own counsel, any Third Party Claim (or, to the extent possible, only that portion of the Third Party Claim for which indemnification is sought). Within thirty (30) days after the receipt of a Notice from an Indemnitee in accordance with Section 4.05(a) (or sooner, if the nature of the Third Party Claim so requires), the Indemnifying Party shall provide a Notice to the Indemnitee indicating whether the Indemnifying Party shall assume responsibility for defending the Third Party Claim and specifying any reservations or exceptions to its defense. If an Indemnifying Party elects not to assume responsibility for defending any Third Party Claim or fails to notify an Indemnitee of its election within thirty (30) days after receipt of a Notice from an Indemnitee as provided in Section 4.05(a) , then the Indemnitee that is the subject of such Third Party Claim shall be entitled to continue to conduct and control the defense of such Third Party Claim.

 

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(c) Allocation of Defense Costs . If an Indemnifying Party has elected to assume the defense of a Third Party Claim, whether with or without any reservations or exceptions with respect to such defense, then such Indemnifying Party shall be solely liable for all fees and expenses incurred by it in connection with the defense of such Third Party Claim and shall not be entitled to seek any indemnification or reimbursement from the Indemnitee for any such fees or expenses incurred during the course of its defense of such Third Party Claim, regardless of any subsequent decision by the Indemnifying Party to reject or otherwise abandon its assumption of such defense. If an Indemnifying Party elects not to assume responsibility for defending any Third Party Claim or fails to notify an Indemnitee of its election within thirty (30) days after receipt of a Notice from an Indemnitee as provided in Section 4.05(a) , and the Indemnitee conducts and controls the defense of such Third Party Claim, then the Indemnifying Party shall be liable for all fees and expenses incurred by the Indemnitee in good faith in connection with the defense of such Third Party Claim.

(d) Right to Monitor and Participate . An Indemnitee that does not conduct and control the defense of any Third Party Claim, or an Indemnifying Party that has failed to elect to defend any Third Party Claim as contemplated hereby, nevertheless shall have the right to employ separate counsel (including local counsel as necessary) of its own choosing to monitor and participate in (but not control) the defense of any Third Party Claim for which it is a potential Indemnitee or Indemnifying Party, but the fees and expenses of such counsel shall be at the expense of such Indemnitee or Indemnifying Party, as the case may be, and the provisions of Section 4.05(c) shall not apply to such fees and expenses. Notwithstanding the foregoing, subject to Sections 6.06 and 6.07 , each non-controlling Person shall cooperate with the Person entitled to conduct and control the defense of such Third Party Claim in such defense and make available to the controlling Person, at the non-controlling Person’s expense, all witnesses, information and materials in such Person’s possession or under such Person’s control relating thereto as are reasonably required by the controlling Person. In addition to the foregoing, if any Indemnitee shall in good faith determine that such Indemnitee and the Indemnifying Party have actual or potential differing defenses or conflicts of interest between them that make joint representation inappropriate, then the Indemnitee shall have the right to employ separate counsel (including local counsel as necessary) and to participate in (but not control) the defense, compromise, or settlement thereof, and the Indemnifying Party shall bear the reasonable fees and expenses of such counsel for all Indemnitees.

(e) No Settlement . Except with respect to the Indemnitee if the Indemnifying Party has failed to assume the defense of the Third Party Claim in accordance with the terms of this Agreement, no Party (or any Subsidiary thereof) may settle or compromise any Third Party Claim for which any Indemnitee is seeking to be indemnified hereunder without the prior written consent of the other non-Affiliate Party, which consent may not be unreasonably withheld, unless such settlement or compromise is solely for monetary damages, does not involve any finding or determination of wrongdoing or violation of Law by any non-Affiliate Party and provides for a full, unconditional and irrevocable

 

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release of each other non-Affiliate Party from all Liability in connection with the Third Party Claim. The Parties hereby agree that if an Indemnitee presents the other non-Affiliate Party with a Notice containing a proposal to settle or compromise a Third Party Claim for which any Indemnitee is seeking to be indemnified hereunder and the Party receiving such proposal does not respond in any manner to the Party or other Indemnitee presenting such proposal within thirty (30) days (or within any such shorter time period that may be required by applicable Law or court order) of receipt of such proposal, then the Party receiving such proposal shall be deemed to have consented to the terms of such proposal.

(f) Allocation of Proceeding Liabilities . The Parties acknowledge that Liabilities for Proceedings (regardless of the parties to the applicable Proceeding) may be partly Baxter Liabilities and partly Baxalta Liabilities. If the Parties cannot agree on an allocation of any such Liabilities for Proceedings (or such matters or types of matters have not been allocated or addressed either in the definition of Baxalta Liabilities, in Schedule 1.01(k) , or otherwise as set forth in this Agreement or any Ancillary Agreement), they shall resolve the matter pursuant to the procedures set forth in Article VII . Neither Party shall, nor shall either Party permit its Subsidiaries to, file Third Party claims or cross-claims against the other Party or its Subsidiaries in a Proceeding in which a Third Party Claim is being resolved.

Section 4.06 Additional Matters .

(a) Timing of Payments . Indemnity Payments or contribution payments in respect of any Liabilities for which an Indemnitee is entitled to indemnification or contribution under this Article IV shall be paid reasonably promptly (but in any event within sixty (60) days of the final determination of the amount that the Indemnitee is entitled to indemnification or contribution under this Article IV ) by the Indemnifying Party to the Indemnitee as such Liabilities are incurred upon demand by the Indemnitee, including reasonably satisfactory documentation setting forth the basis for the amount of such Indemnity Payments or contribution payments, including documentation with respect to calculations made and consideration of any Insurance Proceeds that actually reduce the amount of such Liabilities. The indemnity and contribution provisions contained in this Article IV shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; and (ii) the knowledge by the Indemnitee of Liabilities for which it might be entitled to indemnification or contribution hereunder.

(b) Notice of Direct Claims . An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given, or will likely give rise to, a right of indemnification under this Agreement or any Ancillary Agreement (other than a Third Party Claim which shall be governed by Section 4.05(a) ), within thirty (30) days of such determination, stating the amount being sought, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises;  provided however , that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except (in the case of a matter that the

 

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Indemnifying Party has determined has given a right of indemnification) to the extent the Indemnifying Party shall have been prejudiced as a result of such failure. The Indemnifying Party will have a period of thirty (30) days after receipt of a notice under this  Section 4.05(b)  within which to respond thereto. If the Indemnifying Party fails to respond within such period, the Liability specified in such notice from the Indemnitee shall be conclusively determined to be a Liability of the Indemnifying Party hereunder. If such Indemnifying Party responds within such period and rejects such claim in whole or in part, the disputed matter shall be resolved in accordance with Article VII .

(c) Subrogation . In the event of payment by or on behalf of any Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

(d) Pursuit of Claims Against Third Parties . If (i) a Party incurs any Liability arising out of this Agreement or any Ancillary Agreement; (ii) an adequate legal or equitable remedy is not available for any reason against the other Party to satisfy the Liability incurred by the incurring Party; and (iii) a legal or equitable remedy may be available to the other Party against a Third Party for such Liability, then the other Party shall use its commercially reasonable efforts to cooperate with the incurring Party, at the incurring Party’s expense, to permit the incurring Party to obtain the benefits of such legal or equitable remedy against the Third Party.

(e) Limitations on Subrogration Rights and Pursuit of Claims . Notwithstanding Sections 4.06(c) and 4.06(d) , without the prior written consent of the Indemnitee (which shall not be unreasonably withheld), no Indemnifying Party shall have the right to pursue claims not directly available to it, or otherwise cause any Indemnitee to pursue any such claims, against Third Parties (other than insurance providers) with whom any Indemnitee (or Affiliate thereof) has a material commercial relationship, if such Indemnitee (or Affiliate thereof) determines in good faith that the pursuit of such claim would reasonably be expected to materially disrupt or diminish the commercial relationship with such Third Party.

Section 4.07 Right of Contribution .

(a) Contribution . If any right of indemnification contained in Section 4.02 or 4.03 is held unenforceable or is unavailable for any reason, or is insufficient to hold harmless an Indemnitee in respect of any Liability for which such Indemnitee is entitled to indemnification hereunder, then the Indemnifying Party shall contribute to the amounts paid or payable by the Indemnitees as a result of such Liability (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and its Subsidiaries, on the one hand, and the Indemnitees entitled to contribution, on the other hand, as well as any other relevant equitable considerations.

 

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(b) Allocation of Relative Fault . Solely for purposes of determining relative fault pursuant to this Section 4.07 : (i) any fault associated with the business conducted with the Deferred Baxalta Local Businesses, Delayed Baxalta Assets or Delayed Baxalta Liabilities (except for the intentional misconduct of Baxter or a Baxter Subsidiary) or with the ownership, operation or activities of the Baxalta Business prior to the Effective Time shall be deemed to be the fault of Baxalta and the Baxalta Subsidiaries, and no such fault shall be deemed to be the fault of Baxter or a Baxter Subsidiary; (ii) any fault associated with the business conducted with Delayed Baxter Assets or Delayed Baxter Liabilities (except for the intentional misconduct of Baxalta or a Baxalta Subsidiary) or with the ownership, operation or activities of the Baxter Business prior to the Effective Time shall be deemed to be the fault of Baxter and the Baxter Subsidiaries, and no such fault shall be deemed to be the fault of Baxalta or a Baxalta Subsidiary.

(c) Contribution Procedures . The provisions of Sections 4.04 through 4.10 and Sections 5.04 through 5.07 shall govern any contribution claims.

Section 4.08 Covenant Not to Sue . Each Party hereby covenants and agrees that none of it, its Subsidiaries or any Person claiming through it shall bring suit or otherwise assert any claim against any Indemnitee, or assert a defense against any claim asserted by any Indemnitee, before any court, arbitrator, neutral mediator or administrative agency anywhere in the world, alleging that: (a) the assumption of any Baxalta Liabilities by Baxalta and the Baxalta Subsidiaries on the terms and conditions set forth in this Agreement and the Ancillary Agreements is void or unenforceable for any reason; (b) the retention of any Baxter Liabilities by Baxter and the Baxter Subsidiaries on the terms and conditions set forth in this Agreement and the Ancillary Agreements is void or unenforceable for any reason, or (c) the provisions of this Article IV are void or unenforceable for any reason.

Section 4.09 Remedies Cumulative . The remedies provided in this Article IV shall be the sole monetary remedies available in respect of this Agreement.

Section 4.10 Survival of Indemnities . The rights and obligations of each of the Parties and their respective Indemnitees under this Article IV shall survive (a) the sale or other transfer by either Party or any of its respective Subsidiaries of any assets or businesses or the assignment by it of any Liabilities; or (b) any merger, consolidation, business combination, sale of all or substantially all of the assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its respective Subsidiaries.

ARTICLE V

CERTAIN OTHER MATTERS

Section 5.01 No Right to Use Regulatory Information . Except as otherwise set forth on Schedule 5.01 : (a) none of Baxter or any of the Baxter Subsidiaries shall have a right of reference to or otherwise be entitled to use the regulatory filings or other regulatory information to the extent exclusively related to any Baxalta Products; and (b) none of Baxalta or any of the Baxalta Subsidiaries shall have a right of reference to or otherwise be entitled to use the regulatory filings or other regulatory information owned or controlled by Baxter or any of the Baxter Subsidiaries for any products in the Baxter Business.

 

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Section 5.02 Directors and Officers Insurance; Fiduciary Liability Insurance .

(a) Prior to the Effective Time, Baxter shall obtain and fully pay for a directors and officers liability run-off insurance policy, for claims made after the Effective Time covering wrongful acts that have occurred prior to the Effective Time and arising out of or relating to Baxalta and the Baxalta Subsidiaries and the Baxalta Business (as the Baxalta Business exists as of immediately after the Effective Time), with a policy period of at least six (6) years from and after the Effective Time, covering (i) any Persons who, as of or at any time prior to the Effective Time, are or have been directors or officers of Baxter or the Baxter Subsidiaries; (ii) any Persons who, as of or at any time prior to the Effective Time, are or have been directors or officers of Baxalta or the Baxalta Subsidiaries; and (iii) Baxter and the Baxter Subsidiaries and Baxalta and the Baxalta Subsidiaries and the Baxalta Business (as the Baxalta Business exists as of immediately after the Effective Time). Such directors and officers liability run-off insurance policy shall be consistent in all material respects with the directors and officers liability insurance policy maintained by Baxter as of the Effective Time (except for the policy period and provisions excluding coverage for wrongful acts occurring after the Effective Time).

(b) Prior to the Effective Time, Baxter shall obtain and fully pay for a fiduciary liability run-off insurance policy, for claims made after the Effective Time covering wrongful acts that have occurred prior to the Effective Time and arising out of or relating to Baxalta and the Baxalta Subsidiaries and the Baxalta Business (as the Baxalta Business exists as of immediately after the Effective Time), with a policy period of at least six (6) years from and after the Effective Time, covering (i) any Persons who, as of or at any time prior to the Effective Time, are or have been fiduciaries of Baxter or the Baxter Subsidiaries; (ii) any Persons who, as of or at any time prior to the Effective Time, are or have been fiduciaries of Baxalta or the Baxalta Subsidiaries or the Baxalta Business (as the Baxalta Business exists as of immediately after the Effective Time); and (iii) Baxter and the Baxter Subsidiaries and Baxalta and the Baxalta Subsidiaries and the Baxalta Business (as the Baxalta Business exists as of immediately after the Effective Time). Such fiduciary liability run-off insurance policy shall be consistent in all material respects with the fiduciary liability insurance policy maintained by Baxter as of the Effective Time (except for the policy period and provisions excluding coverage for wrongful acts occurring after the Effective Time).

Section 5.03 Insurance Matters .

(a) Baxalta acknowledges and agrees, on its own behalf and on behalf of each of the Baxalta Subsidiaries, that, from and after the Effective Time, neither Baxalta nor any of the Baxalta Subsidiaries shall have any rights to or under any of Baxter’s or the Baxter Subsidiaries’ insurance policies, except as expressly provided in this Agreement or any Ancillary Agreement.

 

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(b) Notwithstanding Section 5.03(a) , from and after the Effective Time, with respect to any Liability incurred by Baxalta or any of the Baxalta Subsidiaries prior to the Effective Time (or, with respect to any Deferred Baxalta Local Business, prior to the Local Closing Date), to the extent reasonably possible, Baxter will, or will cause the applicable insurance companies or a Baxter Subsidiary that is insured thereunder to (i) continue to provide Baxalta and the Baxalta Subsidiaries with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Baxalta and take commercially reasonable actions as may be necessary or advisable to assist Baxalta in submitting such claims under the applicable insurance policies;  provided , that Baxalta shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims and neither Baxter nor the insurance company or any Baxter Subsidiary shall be required to maintain such insurance policies. For the avoidance of doubt, if an occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta Local Business, after the Local Closing Date), then no payment for any damages, costs of defense, or other sums with respect to such claim shall be available to Baxalta under such insurance policies. Neither Baxalta nor any Baxalta Subsidiary, in connection with making a claim under any insurance policy of Baxter or any Baxter Subsidiary pursuant to this Section 5.03(b) , shall take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter or any Baxter Subsidiary, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating or reducing coverage, or increasing the amount of any premium owed by Baxter or any Baxter Subsidiary under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter or any Baxter Subsidiary under the applicable insurance policy.

At all times, the Parties shall, and shall cause their respective Subsidiaries to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.

(c) At the Effective Time, Baxalta shall have in effect all insurance programs required to comply with Baxalta’s statutory and contractual obligations and such other insurance policies as reasonably necessary or customary for companies operating a business similar to the Baxalta Business. Such insurance programs include general liability, commercial auto liability, workers’ compensation, employers liability, product liability, professional services liability, property, cargo, employment practices liability, employee dishonesty/crime, aircraft hull and liability, directors’ and officers’ liability, fiduciary liability and special accident.

(d) Baxalta agrees, on its own behalf and on behalf of the Baxalta Subsidiaries, that, from the Effective Time until the sixth (6th) anniversary of the Effective Time, Baxter and the Baxter Subsidiaries shall be named as additional insureds or loss payee, whichever is appropriate, under Baxalta’s or the Baxalta Subsidiaries’ insurance policies in respect of any Baxter Liabilities arising out of the Baxalta Business or any wrongful acts or omissions prior to the Effective Time to the extent the applicable insurance carrier permits it. Baxalta shall indemnify, hold harmless and reimburse Baxter and the Baxter Subsidiaries for any and all costs incurred by Baxter or the Baxter Subsidiaries to the extent resulting from any of Baxalta’s or the Baxalta Subsidiaries’ insurance policies in which Baxter or any of the Baxter Subsidiaries are named as additional insureds, including any deductibles, self-insured retentions or uninsured losses.

 

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(e) Neither Baxter nor any of the Baxter Subsidiaries shall have any obligation to secure extended reporting for any claims under any of Baxter’s or the Baxter Subsidiaries’ claims-made or occurrence-reported liability policies for any acts or omissions by Baxalta or any Baxalta Subsidiary incurred prior to the Effective Time.

(f) This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of either Baxter or any Baxter Subsidiary in respect of any of the Baxter insurance policies and programs or any other contract or policy of insurance.

Section 5.04 Late Payments . Except as provided in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement or any Ancillary Agreement (and any amounts billed or otherwise invoiced or demanded and properly payable that are not paid within sixty (60) days of the date of such bill, invoice or other demand) shall accrue interest at a rate per annum equal to 3% per annum, or the maximum legal rate, whichever is lower.

Section 5.05 Treatment of Payments for Tax Purposes . For all Tax purposes, the Parties agree to treat (a) any payment required by this Agreement (other than payments with respect to interest accruing after the Effective Time) as either a contribution by Baxter to Baxalta or a distribution by Baxalta to Baxter, as the case may be, occurring immediately prior to the Effective Time or as a payment of an assumed or retained Liability and (b) any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by applicable Law.

Section 5.06 Inducement . Baxalta acknowledges and agrees that Baxter’s willingness to cause, effect and consummate the Separation and the Distribution has been conditioned upon and induced by Baxalta’s covenants and agreements in this Agreement and the Ancillary Agreements, including Baxalta’s assumption of the Baxalta Liabilities pursuant to the Separation and the provisions of this Agreement and Baxalta’s covenants and agreements contained in Article IV .

Section 5.07 Post-Effective Time Conduct . The Parties acknowledge that, after the Effective Time, each Party shall be independent of the other Party, with responsibility for its own actions and inactions and its own Liabilities relating to, arising out of or resulting from the conduct of its business, operations and activities following the Effective Time, except as may otherwise be provided herein or in any Ancillary Agreement, and each Party shall (except as otherwise provided in Article IV , including Sections 4.02 and 4.03 ) use commercially reasonable efforts to prevent such Liabilities from being inappropriately borne by the other Party.

Section 5.08 Licensed Patents . The Parties have determined that certain Patents will need to be used by both Parties after the Separation and therefore wish to establish license terms with respect to such Patents.

 

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(a) Grant of Rights to Licensee . Subject to the terms of the applicable section of Schedule 5.08(a) (the “ Licensed Patent Schedule ”), Licensor shall, and shall cause its controlled group Affiliates to (in each case to the extent each such Affiliate has granting rights), grant to Licensee and its controlled group Affiliates a non-exclusive, perpetual, irrevocable, fully paid and royalty free right and license to make, have made, use, sell, have sold, offer for sale, or import under the Licensed Patents set forth on the applicable section of Schedule 5.08(a) in the Territory in the Field-of-Use.

(b) Sublicense Rights . Subject to the terms of the Licensed Patent Schedule, Licensee or its Affiliates may grant sublicenses under the licenses in Section 5.08(a) solely to (i) Third Parties conducting research and development for Licensee or its Affiliates, or (ii) bona fide Third Party collaborators, co-marketers, distributors, contract manufacturers or other commercial partners of Licensee or its Affiliates, in each case, only to the extent such sublicense is: (x) pursuant to a written agreement with Licensee or its Affiliates; and (y) reasonably necessary for and limited to the purpose of the research, development, collaboration, co-marketing, distribution, manufacturing or other similar arrangement with Licensee or its Affiliates in the applicable Field-of-Use (i.e., excluding Third Parties who have no significant relationship with Licensee or its Affiliates other than the sublicense arrangement). Licensee shall provide Notice to Licensor of each sublicense granted hereunder, and shall provide Licensor with the name and address of each sublicensee and a description of the rights granted and the territory covered by each sublicensee; provided such notice requirement does not apply to research agreements, clinical study agreements, investigator initiated studies, service agreements, manufacturing agreements, distribution agreements, promotion agreements and the like that may contain a limited express or implied sublicense to perform the research, study, services or other activities that are the subject of said agreement.

(c) Sale of Business . To the extent Licensee sells, divests or otherwise transfers to a Third Party an entire product line, Affiliate, division or other business unit (“ Sold Business ”) in a transaction that does not constitute a Change of Control of Licensee, and: (i) the activities of the Sold Business, but for the license granted under this Section 5.08 , would infringe a claim of a Licensed Patent at the time of the sale or other transfer; and (ii) Licensee maintains a business that, but for the license granted under this Section 5.08 , would infringe such Licensed Patent at the time of such sale, divestiture or other transfer, then Licensor shall grant to Licensee the right to grant to the Third Party acquiring such Sold Business a non-exclusive sublicense to said Licensed Patent, subject to the terms and conditions of this Section 5.08 and the applicable Licensed Patent Schedule, and only to the extent the activities of the Sold Business would be infringing such Licensed Patent, but for the foregoing license, at the time of such sale, divestiture or other transfer. Upon any such sale, divesture or other transfer involving a sublicense grant as contemplated by this Section 5.08(c) , Licensee shall provide a Notice to Licensor setting forth the name and address of each such Third Party. In the event Licensee sells, divests or otherwise transfers substantially all of the business related to such Licensed Patent, or engages in a Change of Control, then the rights of the Third Party acquiring such Sold Business shall be determined in accordance with Section 9.03 .

 

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(d) Obligations with Respect to Affiliates . To the extent that any Affiliate of Licensee exercises any rights or obligations of Licensee under this Section 5.08 , Licensee shall ensure that such Affiliate exercises such rights and obligations in a manner consistent with, and subject to the applicable provisions of, this Section 5.08 .

(e) Rights in Bankruptcy. All Licensed Patents and licenses granted under or pursuant to this Section 5.08 are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, licenses of rights to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that each of them as a Licensee of such rights under this Section 5.08 , as applicable, shall retain and may fully exercise all of their rights and elections under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, the Party that is not a party to such proceeding shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party’s possession, shall be promptly delivered to it: (i) upon the subject Party’s receipt of a Notice from the non-subject Party requesting such information, unless the Party subject to such proceeding elects to continue to perform all of its obligations under this Section 5.08 ; or (ii) if not delivered under clause (i) above, following the rejection of this Section 5.08 by or on behalf of the subject Party upon receipt of a Notice from the non-subject Party requesting such information.

(f) Prosecution, Maintenance and Enforcement of Patent Rights . Unless otherwise set forth in the Licensed Patent Schedule and subject to the remainder of this Section 5.08(f) , Licensor shall have the sole right, but not the obligation, to prepare, file, prosecute, maintain, enforce and defend the Licensed Patents at Licensor’s sole cost and expense. Notwithstanding any other provision of this Agreement, neither Licensor nor any of its controlled group Affiliates shall abandon the prosecution of any patent application or the maintenance of any Licensed Patent without providing at least ninety (90) days’ prior notice to Licensee. Upon receiving such notice, Licensee (or its designee(s)) may, at Licensee’s (or its designee’s)) sole option, take over the prosecution of any such patent application or maintenance of any such patent. If Licensee (or its designee(s)) files a patent application or takes over the prosecution of any patent application or maintenance of any patent, pursuant to this Section 5.08(f) , then Licensor shall, or shall cause its applicable Affiliate to, promptly assign all right, title and interest in and to such patent or application to Licensee (or its designee(s)), and Licensee (or its designee(s)) shall have the sole authority over the prosecution, maintenance, enforcement and defense of such patent application or patent. Licensor shall, and shall cause its controlled group Affiliates to, provide Licensee (or its designee(s)) with all reasonable cooperation and assistance in obtaining such Licensed Patents, including by providing Licensee (or its designee(s)) with copies of all documents, official papers and correspondence related to the prosecution of such Licensed Patents (regardless of whether privileged, confidential or work-product) and reasonable access to Licensor’s and its Affiliates’ personnel with knowledge of such Licensed Patents. Licensor shall, and shall cause its controlled group Affiliates to, sign and deliver, cause to be signed and delivered, at Licensee’s (or its designee(s)) sole cost and expense, all legal documents necessary in connection with such filing, prosecution and maintenance.

 

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(g) Inventor Remuneration . If, in respect of an invention underlying any Patent or Other Intellectual Property, any payment is payable from or after the Effective Time by or to Baxter or any Baxter Subsidiary, on the one hand, or Baxalta or any Baxalta Subsidiary, on the other hand, to any current or former employee who is, under the Law of any jurisdiction, entitled to such payment as a remuneration of such employee’s contribution to the invention (an “ Employee Inventor Remuneration Entitlement ”), the following shall apply:

(i) If and to the extent that the actions or events that give rise to an Employee Inventor Remuneration Entitlement relate to the Baxalta Intellectual Property, Baxalta shall indemnify and hold harmless Baxter and the Baxter Subsidiaries from and against the Employee Inventor Remuneration Entitlements resulting from such actions or events. If and to the extent that the actions or events that give rise to an Employee Inventor Remuneration Entitlement are related to any other intellectual property that is or was the property of Baxter or any of its Subsidiaries (but excluding the Baxalta Intellectual Property), Baxter shall indemnify and hold harmless Baxalta and the Baxalta Subsidiaries from and against the Employee Inventor Remuneration Entitlements resulting from such actions and events. If and to the extent that the actions or events that give rise to an Employee Inventor Remuneration Entitlement are related both to Baxalta Intellectual Property and to any other intellectual property that is or was the property of Baxter or any of its Subsidiaries (but excluding the Baxalta Intellectual Property), then the Party who is not legally obligated to pay the Employee Inventor Remuneration Entitlements shall indemnify and hold harmless the other Party and its Subsidiaries from and against the Employee Inventor Remuneration Entitlements resulting from such actions or events on a pro rata basis, taking into account the relative benefit from such actions and events to the Party (or its Affiliates) not legally obligated to pay the Employee Inventor Remuneration Entitlements. Notwithstanding the foregoing, any allocation of responsibility for Employee Inventor Remuneration Entitlements described on Schedule 5.08(g) shall prevail in the event of any conflict with this Section 5.08(g)(i) .

(ii) If the determination, adjustment, adaption or other assessment of an Employee Inventor Remuneration Entitlement is, or becomes after the Effective Time, the subject matter of: (x) any Proceeding; (y) any consultations, negotiations or agreement with the relevant employee or a body of employees; or (z) a unilateral decision of a Party (each of (x) through (z), including any appeals, a “ Remuneration Assessment ”), the Parties shall cooperate with respect to such Remuneration Assessment in good faith. The Party against which a Remuneration Assessment is made shall: (A) provide Notice to the other Party about, and offer the other Party reasonable opportunity to participate in, the Remuneration Assessment; (B) take the other Party’s reasonable comments and requests into due

 

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consideration; and (C) refrain from acknowledging or settling, agreeing to or unilaterally deciding on the relevant Employee Inventor Remuneration Entitlement without the other Party’s prior written consent (which consent shall not be unreasonably delayed, conditioned or withheld). The indemnifiable Employee Inventor Remuneration Entitlements described herein shall include reasonable out-of-pockets fees and expenses (including outside counsel fees) related to such Remuneration Assessment); provided that the Party from whom indemnification is sought shall have the right to consult with the Party against which a Remuneration Assessment is made regarding the selection of such counsel, and the Party against which a Remuneration Assessment is made shall act in the ordinary course in incurring such fees and expenses as though the indemnification provided hereunder were not available.

(iii) Each Party shall provide the other Party with any information about the commercial exploitation of the relevant Patent or Other Intellectual Property, including any payments or other economic benefits received from such exploitation, by the Party and its Subsidiaries reasonably requested by the other Party for any determination under subsections (i) and (ii) above.

(h) License Term . Each license granted pursuant to this Section 5.08 shall be effective as of the Effective Time and shall continue in full force and effect until the earlier of: (i) the expiration set forth on the Licensed Patent Schedule; (ii) the execution and delivery by each of the Parties of a written agreement terminating such license; or (iii) with respect to the Licensed Patent Schedule, delivery of a Notice by Licensee to Licensor terminating the licenses provided for in the Licensed Patent Schedule. The provisions of Section 5.08(e) and Section 5.08(g) shall survive the expiration or termination of the applicable licenses granted pursuant to this Section 5.08 and shall remain in full force and effect thereafter.

ARTICLE VI

EXCHANGE OF INFORMATION; CONFIDENTIALITY

Section 6.01 Agreement for Exchange of Information; Archives .

(a) Exchange of Information . Except as otherwise provided in any Ancillary Agreement, each of Baxter and Baxalta, on behalf of itself and its respective Subsidiaries and Affiliates, shall use commercially reasonable efforts to provide or make available, or cause to be provided or made available, to the other Party or its applicable Subsidiaries, at any time before or after the Effective Time, as soon as reasonably practicable after written request therefor, any Information (or a copy thereof) in the possession or under the control of either Party or any of its Subsidiaries to the extent that (i) such Information relates to the Baxalta Business, or any Baxalta Asset or Baxalta Liability, if Baxalta is the requesting Party, or to the Baxter Business, or any Baxter Assets or Baxter Liability, if Baxter is the requesting Party; (ii) such Information is required by the requesting Party to comply with its (or its applicable Subsidiaries’) obligations under this Agreement or any Ancillary Agreement; or (iii) such Information is required by the requesting Party to comply with any obligation imposed by any Governmental Authority; provided , however ,

 

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that, in the event that the Party to whom the request has been made determines that any such provision of Information could be commercially detrimental, violate any Law or agreement, or waive any attorney-client privilege, then the Parties shall use commercially reasonable efforts to permit compliance with such obligations to the extent and in a manner that avoids any such harm or consequence. The Party providing Information pursuant to this Section 6.01(a) shall only be obligated to provide such Information in the form, condition and format in which it then exists and in no event shall such Party be required to perform any improvement, modification, conversion, updating or reformatting of any such Information, and nothing in this Section 6.01(a) shall expand the obligations of the Parties under Section 6.03 .

(b) Access to Specified Information . Without limiting the generality of the foregoing, until the first Baxalta fiscal year end occurring during the year of the Distribution Date (and for a reasonable period of time afterwards as required for each of Baxter and Baxalta to prepare consolidated financial statements or complete a financial statement audit for the fiscal year during which the Distribution Date occurs), each of Baxter and Baxalta shall use its commercially reasonable efforts to cooperate with the other Party’s Information requests to enable (i) the other Party to meet its timetable for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K promulgated under the Exchange Act; and (ii) the other Party’s accountants to timely complete their review of the quarterly financial statements and audit of the annual financial statements, including, to the extent applicable to such Party, its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002, the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder and any other applicable Laws.

(c) Compensation for Providing Information . The Party requesting Information agrees to reimburse the other Party for the reasonable costs, if any, of creating, gathering, copying, transporting and otherwise complying with the request with respect to such Information (including any reasonable costs and expenses incurred in any review of Information for purposes of protecting the Privileged Information of the providing Party or in connection with the restoration of backup media for purposes of providing the requested Information). Except as may be otherwise specifically provided elsewhere in this Agreement or in any Ancillary Agreement, such costs shall be computed in accordance with the providing Party’s standard methodology and procedures.

Section 6.02 Ownership of Information . The provision of any Information pursuant to Section 6.01 shall not affect the ownership of such Information (which shall be determined solely in accordance with the terms of this Agreement and the Ancillary Agreements), or constitute the grant of rights in or to any such Information.

 

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Section 6.03 Stored Records .

(a) The Parties agree and acknowledge that it is not practicable to separate all Tangible Information belonging to the Parties or their Subsidiaries, and that following the Effective Time, each Party (or its Subsidiaries) will have some of the Tangible Information of the other Party and its Subsidiaries stored at internal or Third Party records storage locations (each, a “ Records Facility ”). Tangible Information held in a Records Facility maintained or arranged for by the Party other than the Party that owns such Tangible Information is referred to as “ Stored Records .” The Party that maintains the Records Facility where Stored Records are held is referred to as the “ Custodial Party ” and the Party that owns the Stored Records held in the other Party’s Records Facility is referred to as the “ Non-Custodial Party .”

(b) Each Party shall use commercially reasonable efforts: (i) to maintain the Stored Records as to which it is the Custodial Party in accordance with its regular records retention policies and procedures and the terms of this Section 6.03 ; and (ii) to comply with the requirements of any “Litigation Hold” that relates to Stored Records as to which it is the Custodial Party that relate to (x) any Proceeding that is pending as of the Effective Time; or (y) any Proceeding that arises or becomes threatened or reasonably anticipated after the Effective Time as to which the Custodial Party has received a Notice of the applicable “Litigation Hold” from the Non-Custodial Party.

Section 6.04 Limitations of Liability . Neither Party shall have any Liability to the other Party in the event that any Information exchanged or provided pursuant to this Agreement is found to be inaccurate in the absence of willful misconduct by the Party providing such Information. Neither Party nor any of its Subsidiaries shall have any Liability to the other Party or any of its Subsidiaries if any Information is destroyed after commercially reasonable efforts by such Party to comply with the provisions of this Article VI .

Section 6.05 Other Agreements Providing for Exchange of Information .

(a) The rights and obligations set forth under this Article VI are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in any Ancillary Agreement.

(b) Either Party that receives, pursuant to a request for Information in accordance with this Article VI , Tangible Information that is not relevant to its request shall (i) return it to the providing Party or, at the providing Party’s request, destroy such Tangible Information; and (ii) deliver to the providing Party a certificate certifying that such Tangible Information was returned or destroyed, as the case may be, which certificate shall be signed by an authorized Representative of the requesting Party.

(c) When any Tangible Information provided by one Party to the other Party (other than Tangible Information provided pursuant to Section 6.03 ) is no longer needed for the purposes contemplated by this Agreement or any Ancillary Agreement or is no longer required to be retained by applicable Law, the receiving Party shall promptly, after request of the other Party, either return to the other Party all Tangible Information in the

 

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form in which it was originally provided (including all copies thereof and all notes, extracts or summaries based thereon) or, if the providing Party has requested that the other Party destroy such Tangible Information, certify to the other Party that it has destroyed such Tangible Information (and such copies thereof and such notes, extracts or summaries based thereon); provided that this obligation to return or destroy such Tangible Information shall not apply to any Tangible Information solely related to the receiving Party’s business, Assets, Liabilities, operations or activities.

Section 6.06 Production of Witnesses; Records; Cooperation . Notwithstanding any provisions of Article VI to the contrary, after the Distribution, each Party shall use commercially reasonable efforts to assist (or cause its Subsidiaries to assist) the other with respect to any Proceeding or potential Proceeding upon the request of such other Party and at such other Party’s sole expense. In addition, each Party shall have the right to request in writing (including on behalf of any of its Subsidiaries) that the other Party make available for consultation or witness purposes, its (or its applicable Subsidiary’s) directors, officers, employees, consultants or agents who have expertise or knowledge with respect to the other Party’s business or products or matters in litigation or alternative dispute resolution to the extent that the requesting Party believes any such persons may reasonably be useful or required in connection with any legal, administrative or other proceedings in which the requesting Party may from time to time be involved. Upon such request, the affected Party shall select a person or persons to provide the requested assistance after conferring in good faith to determine which person or persons should provide such assistance, and if commercially reasonable shall use its efforts to make such person or persons available at the requesting Party’s sole expense (at a rate to be mutually and reasonably agreed at such time).

Section 6.07 Privileged Matters .

(a) The Parties recognize that legal and other professional services that have been and shall be provided prior to the Effective Time have been and shall be rendered for the collective benefit of the Parties and their respective Subsidiaries, and that each Party and its respective Subsidiaries should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith.

(b) The Parties agree as follows:

(i) Baxter shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to the Baxter Business, whether or not the Privileged Information is in the possession or under the control of Baxter or a Baxter Subsidiary or Baxalta or a Baxalta Subsidiary. Baxter shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Baxter Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Baxter or a Baxter Subsidiary or Baxalta or a Baxalta Subsidiary.

 

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(ii) Baxalta shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to the Baxalta Business, whether or not the Privileged Information is in the possession or under the control of Baxalta or a Baxalta Subsidiary or Baxter or a Baxter Subsidiary. Baxalta shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Baxalta Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Baxalta or a Baxalta Subsidiary or Baxter or a Baxter Subsidiary.

(iii) If Baxter and Baxalta do not agree as to whether certain information is Privileged Information, then the information shall be treated as Privileged Information, and the Party who believes such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information unless the Parties otherwise agree. The Parties shall utilize the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the Baxter Business, solely to the Baxalta Business, or to both the Baxter Business and the Baxalta Business.

(c) Subject to Sections 6.07(d) and 6.07(e) , the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.07(b) and all privileges and immunities relating to any Proceedings or other matters that involve both Parties (or one or more of their respective Subsidiaries) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party or any of its Subsidiaries without the consent of the other Party.

(d) If any dispute arises between Baxter and Baxalta, or any of their respective Subsidiaries, regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or their respective Subsidiaries, each Party agrees that it shall (i) negotiate with the other Party in good faith; (ii) endeavor to minimize any prejudice to the rights of the other Party or any of its Subsidiaries; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party specifically agrees that it shall not (and shall cause its Subsidiaries not to) withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests.

(e) Upon receipt by Baxalta or by any of the Baxalta Subsidiaries of any subpoena, discovery or other request that may reasonably be expected to result in the production or disclosure of information subject to a shared privilege or immunity or as to which Baxter or any of the Baxter Subsidiaries has the sole right hereunder to assert a privilege or immunity, or if Baxalta obtains knowledge that any of its, or the Baxalta Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the

 

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production or disclosure of such Privileged Information, Baxalta shall promptly provide Notice to Baxter of the existence of the request (which Notice shall be delivered to Baxter no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide Baxter a reasonable opportunity to review the information and to assert any rights it or they may have, including under this Section 6.07 or otherwise, to prevent the production or disclosure of such Privileged Information.

(f) Upon receipt by Baxter or by any of the Baxter Subsidiaries of any subpoena, discovery or other request that may reasonably be expected to result in the production or disclosure of information subject to a shared privilege or immunity or as to which Baxalta or any of the Baxalta Subsidiaries has the sole right hereunder to assert a privilege or immunity, or if Baxter obtains knowledge that any of its, or the Baxter Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Baxter shall promptly provide Notice to Baxalta of the existence of the request (which Notice shall be delivered to Baxalta no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide Baxalta a reasonable opportunity to review the information and to assert any rights it or they may have, including under this Section 6.07 or otherwise, to prevent the production or disclosure of such Privileged Information.

(g) The Parties agree that they have or may in the future have common legal interests in the Baxter Liabilities and any corresponding legal rights, in the Baxalta Liabilities and any corresponding legal rights, in the Privileged Information and in the preservation of the protected status of the Privileged Information. The Parties have disclosed and exchanged and will disclose and exchange certain Privileged Information between and among themselves in order to further the Parties’ common legal interests.

(h) Any furnishing of, or access to, information pursuant to this Agreement is made in reliance on the agreement of Baxter and Baxalta set forth in this Section 6.07 and in Section 6.08 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. The Parties further agree that (i) the exchange by one Party (or any of its Subsidiaries) to the other Party (or any of its Subsidiaries) of any Privileged Information that should not have been transferred pursuant to the terms of this Article VI shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a Subsidiary has received) such Privileged Information shall promptly return such Privileged Information to the Party (or its applicable Subsidiary) who has the right to assert the privilege or immunity.

(i) In furtherance of, and without limitation to, the Parties’ agreement under this Section 6.07 , Baxter and Baxalta shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.

 

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Section 6.08 Confidentiality .

(a) Confidentiality . From and after the Effective Time, subject to Section 6.09 and except as contemplated by or otherwise provided in this Agreement or any Ancillary Agreement, Baxter, on behalf of itself and each of the Baxter Subsidiaries, and Baxalta, on behalf of itself and each of the Baxalta Subsidiaries, agrees to hold, and to cause its respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives (each, a “ Representative ”) to hold, in strict confidence, with at least the same degree of care that applies to Baxter’s confidential and proprietary information pursuant to policies in effect as of the Effective Time, all confidential and proprietary information concerning the other Party (or its business) and the other Party’s Subsidiaries (or their respective businesses) that is either in its possession (including confidential and proprietary information in its possession prior to the Effective Time) or furnished by the other Party or the other Party’s Subsidiaries or their respective Representatives at any time pursuant to this Agreement or any Ancillary Agreement, and shall not use any such confidential and proprietary information other than for such purposes as may be expressly permitted hereunder or thereunder, except, in each case, to the extent that such confidential and proprietary information has been: (i) in the public domain or generally available to the public, other than as a result of a disclosure by such Party or any of its Subsidiaries or any of their respective Representatives in violation of this Agreement; (ii) later lawfully acquired from other sources by such Party or any of its Subsidiaries, which sources are not themselves bound by a confidentiality obligation or other contractual, legal or fiduciary obligation of confidentiality with respect to such confidential and proprietary information; or (iii) independently developed or generated without reference to or use of the respective proprietary or confidential information of the other Party or any of its Subsidiaries. If any confidential and proprietary information of one Party or any of its Subsidiaries is disclosed to another Party or any of its Subsidiaries in connection with providing services to such first Party or any of its Subsidiaries under this Agreement or any Ancillary Agreement, then such disclosed confidential and proprietary information shall be used only as required to perform such services.

(b) No Release; Return or Destruction . Each Party agrees not to release or disclose, or permit to be released or disclosed, any information addressed in Section 6.08(a) to any other Person, except its Representatives who need to know such information in their capacities as such, and except in compliance with Section 6.09 . Information furnished by the other Party after the Effective Time pursuant to this Agreement or any Ancillary Agreement shall be subject to the provisions of Section 6.03 .

(c) Third-Party Information; Privacy or Data Protection Laws . Each Party acknowledges that it and its respective Subsidiaries may presently have and, following the Effective Time, may gain access to or possession of confidential or proprietary information of, or personal information relating to, Third Parties (i) that was received under confidentiality or non-disclosure agreements entered into between such Third Parties, on the one hand, and the other Party or the other Party’s Subsidiaries, on the other hand, prior to the Effective Time; or (ii) that, as between the two Parties, was originally collected by the other Party or the other Party’s Subsidiaries and that may be subject to and protected by privacy, data protection or other applicable Laws. As may be

 

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provided in more detail in an applicable Ancillary Agreement, each Party agrees that it shall hold, protect and use, and shall cause its Subsidiaries and its and their respective Representatives to hold, protect and use, in strict confidence the confidential and proprietary information of, or personal information relating to, Third Parties in accordance with privacy, data protection or other applicable Laws and the terms of any agreements that were either entered into before the Effective Time or affirmative commitments or representations that were made before the Effective Time by, between or among the other Party or the other Party’s Subsidiaries, on the one hand, and such Third Parties, on the other hand.

Section 6.09 Protective Arrangements . In the event that either Party or any of its Subsidiaries is requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) by any Governmental Authority or pursuant to applicable Law to disclose or provide any confidential or proprietary information of the other Party (other than with respect to any such information furnished pursuant to the provisions of Sections 6.01 through 6.07 ), as applicable, that is subject to the confidentiality provisions hereof, such Party shall provide the other Party with Notice of such request or demand as promptly as practicable under the circumstances so that such other Party shall have an opportunity to seek an appropriate protective order, at such other Party’s own cost and expense. In the event that such other Party fails to receive such appropriate protective order in a timely manner and the Party receiving the request or demand reasonably determines that its failure to disclose or provide such information shall actually prejudice the Party receiving the request or demand, then the Party that received such request or demand may thereafter disclose or provide information to the extent required by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.

ARTICLE VII

DISPUTE RESOLUTION

Section 7.01 Disputes . Any controversy or claim arising out of or relating to this Agreement or any Ancillary Agreements, or the breach thereof (a “ Dispute ”), shall be resolved: (a) first, by negotiation by the applicable local or functional leads (if applicable to any Dispute), and then (if there remains a Dispute) by discussions between the designated leaders of Baxter’s and Baxalta’s respective Project Management Offices related to the Separation, followed by (if there remains a Dispute) negotiation by and among the members of the Transition Committee, with the possibility of mediation as provided in Section 7.02 ; and (b) then, if negotiation and mediation fail, by binding arbitration as provided in Section 7.03 . Each Party agrees on behalf of itself and each of its Subsidiaries that the procedures set forth in this Article VII shall be the exclusive means for resolution of any Dispute. The initiation of mediation or arbitration hereunder will toll the applicable statute of limitations for the duration of any such proceedings.

Section 7.02 Negotiation and Mediation . If either party serves written notice of a Dispute upon the other party (a “ Dispute Notice ”), the parties will first attempt to resolve such Dispute by direct discussions and negotiation (including as set forth in Section 7.01 above or, as applicable, in accordance with the applicable Ancillary Agreement). If the parties to the Dispute agree, the parties may also attempt to resolve the Dispute by a mediation administered by the International Institute for Conflict Prevention & Resolution (“ CPR ”) under its Mediation Procedure.

 

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Section 7.03 Arbitration .

(a) If a Dispute is not resolved within 45 days (or later if mutually agreed by the Parties) after the service of a Dispute Notice, either party shall have the right to commence arbitration. The arbitration shall be administered by the CPR pursuant to its Arbitration Rules and Procedures. References herein to any arbitration rules or procedures mean such rules or procedures as amended from time to time, including any successor rules or procedures, and references herein to the CPR include any successor thereto. The arbitration shall be before three (3) arbitrators. Each party shall designate one arbitrator in accordance with the “screened” appointment procedure provided in Rule 5.4 of the CPR Rules. The two party-appointed arbitrators will select the third, who will serve as the panel’s chair or president. This arbitration provision, and the arbitration itself, shall be governed by the laws of Delaware and the Federal Arbitration Act, 9 U.S.C. §§ 1-16.

(b) Consistent with the expedited nature of arbitration, each party will, upon the written request of the other party, promptly provide the other with copies of documents on which the producing party may rely in support of or in opposition to any claim or defense. At the request of a party, the arbitrators shall have the discretion to order examination by deposition of witnesses to the extent the arbitrator deems such additional discovery relevant and appropriate. Depositions shall be limited to a maximum of five per party and shall be held within 45 days of the grant of a request. Additional depositions may be scheduled only with the permission of the arbitrators, and for good cause shown. Each deposition shall be limited to a maximum of one day’s duration. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary or confidential information. The parties shall not utilize any other discovery mechanisms, including international processes and U.S. federal statutes, to obtain additional evidence for use in the arbitration. Any Dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrators, which determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrators. All costs and fees relating to the retrieval, review and production of electronic discovery shall be paid by the party requesting such discovery.

(c) The panel of arbitrators shall have no power to award non-monetary or equitable relief of any sort. The arbitrators shall have no power or authority, under the CPR Rules for Non-Administered Arbitration or otherwise, to relieve the parties from their agreement hereunder to arbitrate or otherwise to amend or disregard any provision of this Agreement or any Ancillary Agreement. The award of the arbitrators shall be final, binding and the sole and exclusive remedy to the parties. Either party may seek to confirm and enforce any final award entered in arbitration, in any court of competent jurisdiction.

 

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(d) If an arbitral award does not impose an injunction on the losing party or contain a money damages award in excess of $25,000,000, then the arbitral award shall not be appealable and shall only be subject to such challenges as would otherwise be permissible under the Federal Arbitration Act, 9 U.S.C. §§ 1-16. In the event that the arbitration does result in an arbitral award, which imposes an injunction or a monetary award in excess of $25,000,000, such award may be appealed to a tribunal of appellate arbitrators via the CPR Arbitration Appeal Procedure.

(e) Except as may be required by Law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

Section 7.04 Interim Relief . At any time during the resolution of a Dispute between the parties, either party has the right to apply to any court of competent jurisdiction for interim relief, including pre-arbitration attachments or injunctions, necessary to preserve the parties’ rights or to maintain the parties’ relative positions until such time as the arbitration award is rendered or the Dispute is otherwise resolved.

Section 7.05 Remedies . The arbitrators shall have no authority or power to limit, expand, alter, amend, modify, revoke or suspend any condition or provision of this Agreement or any Ancillary Agreement nor any right or power to award punitive, exemplary or treble damages (or other multiple damages that are not actual damages).

Section 7.06 Expenses . Each party shall bear its own costs, expenses and attorneys’ fees in pursuit and resolution of any Dispute;  provided ,  however , that, in the event of any arbitration pursuant to Section 7.03 , the non-prevailing party shall bear both parties’ costs, expenses and attorneys’ fees incurred in connection with such arbitration (including the fees of any arbitrator).

Section 7.07 Continuation of Services and Commitments . Unless otherwise agreed in writing, the Parties shall, and shall cause their respective Subsidiaries to, continue to honor all commitments under this Agreement and each Ancillary Agreement to the extent required by such Agreements during the course of dispute resolution pursuant to the provisions of this Article VII with respect to all matters related to such Dispute.

ARTICLE VIII

TERMINATION

Section 8.01 Termination . This Agreement and all Ancillary Agreements may be terminated and the Distribution may be amended, modified or abandoned at any time prior to the Effective Time by and in the sole discretion of Baxter without the approval of any Person, including Baxalta. In the event of such termination, this Agreement shall become null and void and no Party, nor any of its directors, officers or employees, shall have any Liability of any kind to any Person by reason of this Agreement. After the Effective Time, this Agreement may not be terminated except by an agreement in writing signed by a duly authorized officer of each of the Parties.

 

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ARTICLE IX

MISCELLANEOUS

Section 9.01 Counterparts; Entire Agreement; Corporate Power; Facsimile Signatures .

(a) Counterparts . This Agreement and each Ancillary Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.

(b) Entire Agreement . This Agreement, the Ancillary Agreements and the exhibits, schedules and annexes hereto and thereto contain the entire agreement between the Parties and their Subsidiaries with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties or their Subsidiaries other than those set forth or referred to herein or therein. It is the intention of the Parties that the Conveyance and Assumption Instruments shall be consistent with the terms of this Agreement and the other Ancillary Agreements. In the event of any conflict between the Conveyance and Assumption Instruments and this Agreement, the provisions of this Agreement shall control. The Parties agree (including on behalf of their Subsidiaries) that the Conveyance and Assumption Instruments are not intended and shall not be construed in any way to enhance, modify or decrease any of the rights or obligations of Baxter, any Baxter Subsidiary, Baxalta or any Baxalta Subsidiary from those contained in this Agreement and the other Ancillary Agreements. This Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements (excluding the Conveyance and Assumption Instruments and other Ancillary Agreements effecting the express terms of this Agreement). Except as otherwise expressly provided in this Agreement, in the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of an Ancillary Agreement (other than any Conveyance and Assumption Instruments), the provisions of such Ancillary Agreement shall control over the inconsistent provisions of this Agreement as to matters specifically addressed in such Ancillary Agreement. Notwithstanding the foregoing, to the extent that any Transition Services Agreement, Long Term Services Agreement or Manufacturing and Supply Agreement becomes effective prior to the Effective Time, the producer or provider (or any of its controlled group Affiliates) thereunder or with respect thereto shall have no Liability with respect to performance or non-performance during any period preceding the Effective Time (as though such agreements for that purpose had only become effective as of the Effective Time) in light of the Parties’ intent for any and all Liabilities related to the operation of the Baxalta Business (including intercompany services related thereto) prior to the Effective Time to remain with Baxalta and its Subsidiaries and for all Liabilities related to the operation of the Baxter Business (including intercompany services related thereto) prior to the Effective Time to remain with Baxter and its Subsidiaries; provided that, for the avoidance of doubt, the recipient or purchaser under such agreements shall continue to be responsible to the provider or producer for payment and other obligations set forth in such agreements from the effective times of such agreements in accordance with the terms thereof. For the avoidance of doubt, the immediately preceding sentence is

 

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intended to achieve the same result as would have occurred had Baxter and Baxalta entered into the applicable Ancillary Agreement covering only the period prior to the Effective Time (and as though such agreement were not considered an “Ancillary Agreement” hereunder) and a new Ancillary Agreement covering the period after the Effective Time (with the latter being the only such Ancillary Agreement that controls in the event of a conflict between such Ancillary Agreement and this Agreement). For the avoidance of doubt, the Tax Matters Agreement shall govern all matters (including any indemnities and payments among the Parties and each of their Subsidiaries and the allocation of any rights and obligations pursuant to agreements entered into with Third Parties) relating to Taxes to the extent specifically addressed in the Tax Matters Agreement.

(c) Corporate Power . Baxter represents on behalf of itself and, to the extent applicable, each Baxter Subsidiary, and Baxalta represents on behalf of itself and, to the extent applicable, each Baxalta Subsidiary as follows:

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

(ii) this Agreement and each Ancillary Agreement to which it is a party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.

(d) Signatures and Delivery . Each Party acknowledges that it and its Subsidiaries and the other Party and its Subsidiaries may execute this Agreement and any Ancillary Agreement to which it is a party by manual, stamp or mechanical signature, and that delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Agreement (whether executed by manual, stamp or mechanical signature) by facsimile or by email or other electronic delivery in portable document format (PDF) or other electronic format shall be effective as delivery of such executed counterpart of this Agreement or any Ancillary Agreement. Each Party (including on behalf of its Subsidiaries) expressly adopts and confirms a stamp or mechanical signature (regardless of whether delivered in person, by mail, by courier, by facsimile or by email or other electronic delivery in portable document format (PDF) or other electronic format) made in its name as if it were a manual signature delivered in person, agrees that it shall not assert that any such signature or delivery is not adequate to bind such Party or party to the same extent as if it were signed manually and delivered in person and agrees that, at the reasonable request of the other Party at any time, it shall as promptly as reasonably practicable cause each such Agreement and Ancillary Agreement to be manually executed (any such execution to be as of the date of the initial date thereof) and delivered in person, by mail or by courier.

Section 9.02 Governing Law . This Agreement and, unless expressly provided therein, each Ancillary Agreement, shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of Laws and principles of the State of Delaware, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

 

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Section 9.03 Assignability . Except as set forth in any Ancillary Agreement, this Agreement and each Ancillary Agreement shall be binding upon and inure to the benefit of the Parties and the parties thereto, respectively, and their respective successors and permitted assigns; provided , however , that neither Party nor any such party thereto may assign its rights or delegate its obligations under this Agreement or any Ancillary Agreement without the express prior written consent of the other Party hereto or the other parties thereto. Notwithstanding the foregoing (but subject to any exceptions or specific restrictions or exceptions set forth in any Ancillary Agreement), no such consent shall be required for the assignment of any party’s rights and obligations under this Agreement or the Ancillary Agreements (except as may be otherwise provided in any such Ancillary Agreement) in whole in connection with a Change of Control of a party in which such party is not the surviving Business Entity, so long as the resulting, surviving or transferee Person assumes all the obligations of the relevant party thereto by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the other Party.

Section 9.04 Third Party Beneficiaries . Except for the indemnification rights under this Agreement of an Indemnitee under this Agreement, (a) the provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the Parties and their respective Subsidiaries, after giving effect to the Distribution, and their permitted successors and assigns, and are not intended to confer upon any Person except the Parties and their respective Subsidiaries, after giving effect to the Separation, and their permitted successors and assigns, any rights or remedies hereunder; and (b) there are no other third-party beneficiaries of this Agreement or any Ancillary Agreement and neither this Agreement nor any Ancillary Agreement shall provide any other Third Party with any remedy, claim, Liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement or any Ancillary Agreement.

Section 9.05 Notices . All Notices and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by e-mail (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a Notice):

If to Baxter:

Baxter International Inc.

One Baxter Parkway

Deerfield, Illinois 60015

Attn: General Counsel

E-mail: general_counsel@baxter.com

 

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If to Baxalta:

Baxalta Incorporated

One Baxter Parkway

Deerfield, Illinois 60015

Attn: General Counsel

E-mail: general_counsel@baxalta.com

Either Party may, by Notice to the other Party, change the address to which such Notices are to be given.

Section 9.06 Severability . In the event that any one or more of the terms or provisions of this Agreement or any Ancillary Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or any Ancillary Agreement, or the application of such term or provision to Persons or circumstances or in jurisdictions other than those as to which it has been determined to be invalid, illegal or unenforceable, and the Parties shall (and shall cause their applicable Subsidiaries to) use their commercially reasonable efforts to substitute one or more valid, legal and enforceable terms or provisions into this Agreement (or the applicable Ancillary Agreement) which, insofar as practicable, implement the purposes and intent of the Parties. Any term or provision of this Agreement or any Ancillary Agreement held invalid or unenforceable only in part, degree or within certain jurisdictions shall remain in full force and effect to the extent not held invalid or unenforceable to the extent consistent with the intent of the parties as reflected by this Agreement. To the extent permitted by applicable Law, each party waives any term or provision of Law which renders any term or provision of this Agreement to be invalid, illegal or unenforceable in any respect.

Section 9.07 Force Majeure . No Party or other Person shall be deemed in default of this Agreement or, unless otherwise expressly provided therein, any Ancillary Agreement for failure to fulfill any obligation (other than a payment obligation) so long as and to the extent to which any delay or failure in the fulfillment of such obligations is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay. A Party or other Person claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide Notice to the other Party or Parties of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement or any Ancillary Agreement as soon as reasonably practicable.

Section 9.08 No Set Off . Except as set forth in any Ancillary Agreement or as otherwise mutually agreed to in writing by the Parties, neither Party nor any of its Subsidiaries shall have any right of set off or other similar rights with respect to (a) any amounts received pursuant to this Agreement or any Ancillary Agreement; or (b) any other amounts claimed to be owed to the other Party or any of its Subsidiaries arising out of this Agreement or any Ancillary Agreement.

 

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Section 9.09 Responsibility for Expenses .

(a) Expenses Incurred on or Prior to the Effective Time . Except as otherwise expressly set forth in this Agreement or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties (including in Schedule 9.09(a)), all costs and expenses incurred on or prior to the Effective Time in connection with the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, the Separation, the Registration Statement, the plan of Separation and the Distribution and the consummation of the transactions contemplated hereby and thereby shall be charged to and paid by Baxter.

(b) Expenses Incurred or Accrued After the Effective Time . Except as otherwise expressly set forth in this Agreement, Schedule 9.09(b) to this Agreement, or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, each Party and its Subsidiaries shall bear its own costs and expenses incurred or accrued after the Effective Time; provided that: (i) any costs and expenses incurred in obtaining any Consent or novation from a Third Party in connection with the assignment to and assumption by a Party or its Subsidiary of any contracts, commitments or understandings in connection with the Separation shall be borne by the Party or its Subsidiary to which such contract, commitment or understanding is being assigned; and (ii) the Parties intend that ongoing cost obligations that each (or any of its Subsidiaries) may have as a provider of services under any International Transition Period Agreement following termination of such services shall be shared for a period of time, on terms to be agreed from time to time between the Parties (or its applicable Subsidiaries).

Section 9.10 Headings . The Article, Section and Paragraph headings contained in this Agreement and in the Ancillary Agreements are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any Ancillary Agreement.

Section 9.11 Survival of Covenants . Except as expressly set forth in this Agreement or any Ancillary Agreement, the covenants and other agreements contained in this Agreement and each Ancillary Agreement, and liability for the breach of any obligations contained herein or therein, shall survive the Effective Time and shall remain in full force and effect thereafter.

Section 9.12 Subsidiaries and Employees . Baxter shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by a Baxter Subsidiary (including the employees thereof) and Baxalta shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by a Baxalta Subsidiary (including the employees thereof).

Section 9.13 Waivers . Waiver by either Party or any of its Subsidiaries of any default by the other Party or any of its Subsidiaries of any provision of this Agreement or any Ancillary Agreement shall not be deemed a waiver by the waiving Party or Person of any subsequent or other default, nor shall it prejudice the rights of the waiving Party or Person. No provisions of this Agreement or any Ancillary Agreement shall be deemed waived unless such waiver is in writing and signed by the authorized representative of the Party or relevant Subsidiary against whom it is sought to be enforced. No failure or delay of any Party (or any of its Subsidiaries) in exercising any right or remedy under this Agreement or any Ancillary Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.

 

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Section 9.14 Amendments . No provisions of this Agreement or any Ancillary Agreement shall be deemed amended, supplemented or modified unless such amendment, supplement or modification is in writing and signed by an authorized representative of both Parties or their relevant Subsidiaries, as the case may be.

Section 9.15 Interpretation . Words in the singular shall be deemed to include the plural and vice versa and words of one gender shall be deemed to include the other genders as the context requires. The terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules and Exhibits hereto and thereto) and not to any particular provision of this Agreement. Article, Section, Exhibit and Schedule references are to the Articles, Sections, Exhibits, and Schedules to this Agreement unless otherwise specified. Unless otherwise stated, all references to any agreement shall be deemed to include the exhibits, schedules and annexes to such agreement. The word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless the context otherwise requires or unless otherwise specified. The word “or” shall not be exclusive. Unless otherwise specified in a particular case, the word “days” refers to calendar days. References herein to this Agreement or any Ancillary Agreement shall be deemed to refer to this Agreement or such Ancillary Agreement as of the date on which it is executed and as it may be amended, modified or supplemented thereafter, unless otherwise specified. References to the performance, discharge or fulfillment of any Liability in accordance with its terms shall have meaning only to the extent such Liability has terms. If the Liability does not have terms, the reference shall mean performance, discharge or fulfillment of such Liability.

Section 9.16 Public Announcements . From and after the Effective Time, Baxter and Baxalta shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.

Section 9.17 Specific Performance . Subject to the provisions of Article VII , in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any Ancillary Agreement, the Party or Parties who are or are to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of its rights under this Agreement or the Ancillary Agreements, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any Proceeding for specific performance that a remedy at Law would be adequate is waived.

 

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Section 9.18 Mutual Drafting . This Agreement and the Ancillary Agreements shall be deemed to be the joint work product of the Parties and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.

* * * * *

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.

 

BAXTER INTERNATIONAL INC. BAXALTA INCORPORATED
By: /s/ James K. Saccaro By: /s/ Robert J. Hombach
Name: James K. Saccaro Name: Robert J. Hombach
Title: Corporate Vice President Title: Corporate Vice President and Chief Financial Officer

[Signature Page to Separation and Distribution Agreement]


Schedule 1.01: Global Transaction Structure

Schedule 1.01(a): Baxalta Assets – Exceptions to Pro Forma Balance Sheet

Schedule 1.01(b): Baxalta Assets – Real Property Interests

Schedule 1.01(c): Baxalta Assets – Other Assets

Schedule 1.01(d): Baxalta Contracts

Schedule 1.01(e): Baxalta Former Business, Baxalta Discontinued Products, Baxalta Discontinued Projects, Baxalta Discontinued Facilities

Schedule 1.01(f): Baxalta Intellectual Property – Patents and Trademarks

Schedule 1.01(g): Baxalta Intellectual Property – Other Intellectual Property

Schedule 1.01(h): Baxalta Intellectual Property

Schedule 1.01(i): Baxalta Liabilities – Exceptions to Pro Forma Balance Sheet

Schedule 1.01(j): Baxalta Contracts

Schedule 1.01(k): Baxalta Liabilities – Litigation and Other Proceedings

Schedule 1.01(l): Baxalta Liabilities – Other Baxalta Liabilities

Schedule 1.01(m): Baxter Assets

Schedule 1.01(n): Baxalta Products

Schedule 1.01(o): Mixed Contracts

Schedule 1.01(p): Transferred Entities

Schedule 1.01(q): Prohibited Persons

Schedule 2.03(a): Deferred Baxalta Local Businesses

Schedule 2.09(b)(ii): Termination of Baxter-Baxalta Agreements – Exceptions

Schedule 2.10: Intercompany Payables and Receivables

Schedule 5.08(a): Licensed Patent Schedule

Schedule 5.08(g): Employee Inventor Remuneration Entitlements

Schedule 9.09(a): Pre-Distribution Costs and Expenses

Schedule 9.09(b): Costs and Expenses

Exhibit 10.1

EMPLOYEE MATTERS AGREEMENT

BY AND BETWEEN

BAXTER INTERNATIONAL INC.

AND

BAXALTA INCORPORATED

DATED AS OF JUNE 30, 2015

EMPLOYEE MATTERS AGREEMENT


TABLE OF CONTENTS

 

         Page
ARTICLE I DEFINITIONS      1

Section 1.01

  Defined Terms      1
ARTICLE II GENERAL PRINCIPLES    10

Section 2.01

  Allocation of Liabilities    10

Section 2.02

  Employment with Baxalta    12

Section 2.03

  Establishment of Baxalta Plans    13

Section 2.04

  Non-Hire; Non-Solicit    14

Section 2.05

  Post-Distribution Employment in Deferred Baxalta Local Businesses    15

Section 2.06

  Collective Bargaining    17

Section 2.07

  Distributorship Model    17
ARTICLE III U.S. AND PUERTO RICO QUALIFIED AND NON-QUALIFIED RETIREMENT PLANS    17

Section 3.01

  Baxalta Pension Plan    17

Section 3.02

  Incentive Investment Plan    21

Section 3.03

  Supplemental Pension Plan    23

Section 3.04

  Deferred Compensation Plan    25
ARTICLE IV NON-U.S. RETIREMENT PLANS    26

Section 4.01

  Establishment of Non-U.S. Retirement Plans and Transfers of Assets and Liabilities    26

Section 4.02

  Shared Plan Model    28
ARTICLE V WELFARE AND FRINGE BENEFIT PLANS    31

Section 5.01

  Health and Welfare Plans    31

Section 5.02

  COBRA and HIPAA    34

Section 5.03

  Vacation, Holidays and Leaves of Absence    34

Section 5.04

  Severance and Unemployment Compensation    34

Section 5.05

  Workers’ Compensation    35
ARTICLE VI EQUITY, INCENTIVE, AND DIRECTOR AND EXECUTIVE COMPENSATION PROGRAMS    35

Section 6.01

  Equity Incentive Programs    35

Section 6.02

  Employee Stock Purchase Plan.    40

Section 6.03

  Annual Bonus    41

Section 6.04

  Directors’ Plan    41

Section 6.05

  Directors’ Deferred Compensation Plan    43
ARTICLE VII MISCELLANEOUS    45

Section 7.01

  Transfer of Records and Information    45

Section 7.02

  Cooperation    45

Section 7.03

  Employee Agreements    45

 

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Section 7.04

Repayment Assets 45

Section 7.05

Compliance 46

Section 7.06

Preservation of Rights 46

Section 7.07

Reimbursement 46

Section 7.08

Matching Grant Plan 46

Section 7.09

Not a Change in Control 46

Section 7.10

Incorporation by Reference 46

Section 7.11

Limitation on Enforcement 47

Section 7.12

Further Assurances and Consents 47

Section 7.13

Third Party Consent 47

Section 7.14

Effect if Distribution Does Not Occur 47

Section 7.15

Disputes 47

Section 7.16

Reverse Jurisdiction 47

 

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This EMPLOYEE MATTERS AGREEMENT dated as of June 30, 2015, is by and between BAXTER INTERNATIONAL INC., a Delaware corporation (“ Baxter ”), and BAXALTA INCORPORATED, a Delaware corporation (“ Baxalta ”).

RECITALS:

WHEREAS, the Baxter Board has determined that it is appropriate and advisable to separate the Baxalta Business from the Baxter Business;

WHEREAS, to achieve the foregoing, the Parties have executed a Separation and Distribution Agreement which provides for, among other things, the contribution from Baxter to Baxalta of certain Assets, the assumption by Baxalta of certain Liabilities from Baxter, the distribution by Baxter of Baxalta Common Stock to Baxter shareholders, and the execution and delivery of this Agreement and certain other agreements to facilitate and provide for the foregoing, in each case subject to the terms and conditions set forth therein;

WHEREAS, the Employees of the Baxalta Business are currently employed by the Baxter Group and are expected to become Employees of the Baxalta Group; and

WHEREAS, this Agreement describes the principal employment, compensation and employee benefit plan arrangements between the Parties.

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

AGREEMENT

ARTICLE I

DEFINITIONS

Section 1.01 Defined Terms . The following capitalized terms as used in this Agreement shall have the meaning set forth below unless otherwise specified herein:

Adjusted Baxter Award ” means a Baxter Option or Baxter RSU Award, as adjusted in accordance with Section 6.01(a) .

Adjusted Baxalta Stock Value ” means the product obtained by multiplying (i) the Baxalta When-Issued Price times (ii) the Distribution Ratio.

Adjusted Option Value ” means (i) the Baxter Stock Value minus (ii) the per share exercise price of the Baxter Option immediately prior to the Distribution Date.

Affiliate ” has the meaning set forth in the Separation and Distribution Agreement.

Agreement ” means this Employee Matters Agreement and each of the Schedules hereto.

Applicable Closing Date ” has the meaning set forth in Section 4.01(a) .


Asset ” has the meaning set forth in the Separation and Distribution Agreement.

Baxalta ” has the meaning set forth in the Preamble.

Baxalta Award ” means a Baxalta Option, Baxalta PSU Award, or Baxalta RSU Award granted pursuant to Section 6.01 .

Baxalta Benefit Plan ” means, following the Distribution, each Benefit Plan sponsored by, maintained by, or contributed to by the Baxalta Group, provided that such term shall include, following the consummation of a Local Closing Transaction, each Benefit Plan sponsored by, maintained by, or contributed to by the applicable Deferred Baxalta Local Business.

Baxalta Board ” means the Baxalta board of directors.

Baxalta Business ” has the meaning set forth in the Separation and Distribution Agreement.

Baxalta Change of Control ” has the meaning set forth in Section 6.01(b) .

Baxalta Common Stock ” has the meaning set forth in the Separation and Distribution Agreement.

Baxalta DCP ” means the Baxalta Incorporated and Subsidiaries Deferred Compensation Plan.

Baxalta Directors’ DCP ” means the Baxalta Incorporated Directors’ Deferred Compensation Plan.

Baxalta Directors’ Plan ” means the Baxalta Incorporated Non-Employee Director Compensation Plan.

Baxalta Employee ” means any Employee who is (i) employed by the Baxalta Group as of immediately prior to the Distribution Date, (ii) a Post-Distribution Baxalta Employee, (iii) designated prior to the Distribution Date by Baxter as an individual whose employment is to transfer from the Baxter Group to the Baxalta Group, whether or not such transfer occurs prior to, upon or after the Distribution Date or (iv) designated as a Baxalta Employee by joint agreement of the Parties (in all cases, other than an Employee who is designated by Baxter prior to the Distribution Date as intended not to transfer to the Baxalta Group).

Baxalta Equity Plan ” means the Baxalta Incorporated 2015 Equity Plan.

Baxalta ESPP ” means the Baxalta Incorporated Employee Stock Purchase Plan.

Baxalta Former Employee ” means a Former Employee who, immediately prior to such individual’s termination of employment with or by the Baxter Group, either (i) was designated by Baxter as an Employee whose employment was to transfer to the Baxalta Group or (ii) if not

 

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so designated by Baxter, was primarily employed or engaged in the Baxalta Business (other than a Former Employee who was designated by Baxter as intended to become a Baxter Retained Employee).

Baxalta Group ” means Baxalta and its Subsidiaries.

Baxalta Health and Welfare Plan ” means, following the Distribution, a Health and Welfare Plan sponsored by, maintained by, or contributed to by the Baxalta Group.

Baxalta IIP ” means the Baxalta Incorporated and Subsidiaries Incentive Investment Plan.

Baxalta Incentive Plan ” means the Baxalta 2015 Incentive Plan.

Baxalta Pension Plan ” means the Baxalta Incorporated and Subsidiaries Pension Plan.

Baxalta Percentage ” means the quotient obtained by dividing (i) the Adjusted Baxalta Stock Value by (ii) the Combined Stock Value.

Baxalta Pre-Distribution Option Value ” means the quotient obtained by dividing (i) the product obtained by multiplying (A) the Adjusted Option Value times (B) the Baxalta Percentage by (ii) the Distribution Ratio.

Baxalta Retiree Health Care Plan ” means the Baxalta Incorporated and Subsidiaries Retiree Plan.

Baxalta SERP ” means the Baxalta Incorporated and Subsidiaries Supplemental Pension Plan.

Baxalta SIP ” has the meaning set forth in Section 3.02(h) .

Baxalta Stock Value ” means the quotient obtained by dividing (i) the product obtained by multiplying (A) the Baxter Stock Value by (B) the Baxalta Percentage, by (ii) the Distribution Ratio.

Baxalta When-Issued Price ” means the volume weighted average per share price, as reported on the NYSE, of Baxalta Common Stock trading “when-issued” during Regular Trading Hours on the final five Trading Days immediately preceding the Effective Time.

Baxter ” has the meaning set forth in the Preamble.

Baxter Benefit Plan ” means a Benefit Plan sponsored by, maintained by, or contributed to by the Baxter Group.

Baxter Board ” means the Baxter board of directors.

Baxter Business ” has the meaning set forth in the Separation and Distribution Agreement.

 

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Baxter Change of Control ” has the meaning set forth in Section 6.01(b) .

Baxter Common Shares ” has the meaning set forth in the Separation and Distribution Agreement.

Baxter Compensation Committee ” means the compensation committee of the Baxter Board.

Baxter DCP ” means the Baxter International Inc. and Subsidiaries Deferred Compensation Plan.

Baxter Directors’ DCP ” means the Baxter International Inc. Directors’ Deferred Compensation Plan, as amended and restated effective January 1, 2014.

Baxter Directors’ Plan ” means the Baxter International Inc. Non-Employee Director Compensation Plan.

Baxter ESPP ” means the Baxter International Inc. Employee Stock Purchase Plan.

Baxter Ex-Distribution Price ” means the volume weighted average per share price, as reported on the NYSE, of Baxter Common Shares trading “ex-distribution” during Regular Trading Hours on the final five Trading Days immediately preceding the Effective Time.

Baxter Former Employee ” means a Former Employee who is not a Baxalta Former Employee.

Baxter Group ” means Baxter and its Subsidiaries (excluding, after the Distribution, any member of the Baxalta Group).

Baxter Health and Welfare Plan ” means a Health and Welfare Plan sponsored by, maintained by, or contributed to by the Baxter Group.

Baxter IIP ” means the Baxter International Inc. and Subsidiaries Incentive Investment Plan.

Baxter Pension Plan ” means the Baxter International Inc. and Subsidiaries Pension Plan.

Baxter Percentage ” means the quotient obtained by dividing (i) the Baxter Ex-Distribution Price by (ii) the Combined Stock Value.

Baxter Pre-Distribution Option Value ” means the product obtained by multiplying (i) the Adjusted Option Value times (ii) the Baxter Percentage.

Baxter Pre-Distribution Stock Value ” means the product obtained by multiplying (i) the Baxter Stock Value by (ii) the Baxter Percentage.

Baxter Puerto Rico Pension Plan ” shall have the meaning set forth in Section 3.01(h) .

Baxter Retained Employee ” means any Employee other than a Baxalta Employee.

 

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Baxter Retiree Health Care Plan ” means the Baxter International Inc. and Subsidiaries Retiree Plan.

Baxter SERP ” means the Baxter International Inc. and Subsidiaries Supplemental Pension Plan.

Baxter SIP ” has the meaning set forth in Section 3.02(h) .

Baxter Stock Programs ” means, collectively, (i) the Baxter International Inc. 2000 Incentive Plan, (ii) the Baxter International Inc. 2001 Incentive Plan, (iii) the Baxter International Inc. 2003 Incentive Plan, (iv) the Baxter International Inc. 2007 Incentive Plan, (v) the Baxter International Inc. 2011 Incentive Plan, (vi) the Baxter International Inc. 2015 Incentive Plan, and (vii) any similar prior Baxter plans and all sub-plans or equity plans related to any of the foregoing, together with any incentive compensation program or arrangement that governs the terms of equity-based incentive awards assumed by the Baxter Group in connection with a corporate transaction and that is maintained by the Baxter Group immediately prior to the Distribution Date, and any sub-plans established under those programs.

Baxter Stock Value ” means the volume weighted average per share price, as reported on the NYSE, of Baxter Common Shares trading “regular-way” during Regular Trading Hours on the final five Trading Days immediately preceding the Effective Time.

Benefit Plan ” means any (i) “employee benefit plan,” as defined in ERISA Section 3(3) (whether or not such plan is subject to ERISA); and (ii) employment, compensation, severance, salary continuation, bonus, thirteenth month, incentive, retirement, thrift, superannuation, savings, pension, workers’ compensation, termination benefit (including termination notice requirements), termination indemnity, other indemnification, supplemental unemployment benefit, redundancy pay, profit sharing, deferred compensation, stock ownership, stock purchase, stock option, stock appreciation right, restricted stock, “phantom” stock, performance share unit, restricted stock unit, other stock-based incentive, change in control, paid time off, perquisite, fringe benefit, vacation, disability, life, or other insurance, death benefit, hospitalization, medical, or other compensatory or benefit plan, program, fund, agreement, arrangement, or policy of any kind (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated), and any trust, escrow or similar agreement related thereto, whether or not funded, excluding any plan, program, fund, agreement, arrangement, or policy (other than for workers’ compensation Liabilities) that is mandated by and maintained solely pursuant to applicable Law.

COBRA ” means coverage required by Code Section 4980B or ERISA Section 601 et. seq.

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

Combined Stock Value ” means the sum of (i) the Baxter Ex-Distribution Price and (ii) the Adjusted Baxalta Stock Value.

Conveyance and Assumption Instruments ” has the meaning set forth in the Separation and Distribution Agreement.

 

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Deferred Baxalta Local Business ” has the meaning set forth in the Separation and Distribution Agreement.

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

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

Distribution Ratio ” means the number of shares of Baxalta Common Stock distributed in the Distribution in respect of one Baxter Common Share.

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

Employee ” means an employee of the Baxter Group or the Baxalta Group, as applicable, including any employee absent from work on account of long-term disability or workers’ compensation leave (in each case, unless treated as a separated employee for employment purposes), vacation, jury duty, funeral leave, personal leave, sickness, short-term disability, military leave, family leave, pay continuation leave, or other approved leave of absence or for whom an obligation to recall, rehire or otherwise return to employment exists under a contractual obligation or Law.

Employee Agreement ” means any employment contract, whether written or unwritten, between a member of the Baxter Group and an Employee or Former Employee, including any standard form employee agreement customarily signed by certain Employees of the Baxter Group and any other form of employment agreement signed or otherwise effective under applicable local Law.

Employee Recoupment Asset ” means an employer’s right to repayment from an employee in respect of a tax equalization payment, sign-on bonus payment, relocation expense payment, tuition payment, reimbursement, loan, or other similar item, including any agreement related thereto.

Employment Tax ” means withholding, payroll, social security, workers’ compensation, unemployment, disability and any similar tax imposed by any Tax Authority or social security authority, and any interest, penalties, additions to tax, or additional amounts with respect to the foregoing imposed on any taxpayer or consolidated, combined, or unitary group of taxpayers. With respect to any Employment Tax, the term “ Tax Authority ” means the governmental entity or political subdivision thereof that imposes such Employment Tax, and the agency (if any) charged with the collection of such Employment Tax for such entity or subdivision.

ERISA ” means the U.S. Employee Retirement Income Security Act of 1974, as amended.

ESOP ” means an employee stock ownership plan, as defined in ERISA Section 407(d)(6) and Code Section 4975(e)(7).

 

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Former Employee ” means any individual whose employment with the Baxter Group terminated on or prior to the Distribution Date, excluding any employee absent from work immediately prior to the Distribution Date on account of long-term disability or workers’ compensation leave (in each case, to the extent not treated as a separated employee for employment purposes), vacation, jury duty, funeral leave, personal leave, sickness, short-term disability, military leave, family leave, pay continuation leave, or other approved leave of absence or for whom an obligation to recall, rehire or otherwise return to employment exists under a contractual obligation or Law.

Health and Welfare Plan ” means any Benefit Plan established or maintained to provide, through the purchase of insurance or otherwise, medical, dental, prescription, vision, short-term disability, long-term disability, death benefits, life insurance, accidental death and dismemberment insurance, business travel accident insurance, employee assistance program, group legal services, wellness, cafeteria (including premium payment, health care flexible spending account, and dependent care flexible spending account components), travel reimbursement, transportation, vacation benefits, apprenticeship or other training programs, day care centers, or prepaid legal services benefits, including any “employee welfare benefit plan” (as defined in ERISA Section 3(1)) that is not a severance plan.

HIPAA ” means the Health Insurance Portability and Accountability Act of 1996, as amended.

Incurred Claim ” means a Liability related to services or benefits provided under a Benefit Plan, and shall be deemed to be incurred: (i) with respect to medical, dental, vision, and prescription drug benefits, upon the rendering of services giving rise to such Liability; (ii) with respect to death benefits, life insurance, accidental death and dismemberment insurance, and business travel accident insurance, upon the occurrence of the event giving rise to such Liability; (iii) with respect to disability benefits, upon the date of disability, as determined by the disability benefit insurance carrier or claim administrator, giving rise to such Liability; (iv) with respect to a period of continuous hospitalization, upon the date of admission to the hospital; and (v) with respect to tuition reimbursement or adoption assistance, upon completion of the requirements for such reimbursement or assistance, whichever is applicable.

International Commercial Operations Agreement ” has the meaning set forth in the Separation and Distribution Agreement.

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

Liabilities ” has the meaning set forth in the Separation and Distribution Agreement.

Local Closing Transaction ” means the local closing transaction involving a Deferred Baxalta Local Business.

Non-U.S. Baxter Benefit Plan ” means a Baxter Benefit Plan established, maintained, or contributed to by the Baxter Group that is primarily for the benefit of Employees or Former Employees who work primarily outside of the United States.

Non-U.S. Baxalta Benefit Plan ” means a Baxalta Benefit Plan established, maintained, or contributed to by the Baxalta Group that is primarily for the benefit of Employees or Former Employees who work primarily outside of the United States.

 

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Non-U.S. Baxalta Employee ” means a Baxalta Employee who works primarily outside of the United States.

Non-U.S. Health and Welfare Plan ” means a Health and Welfare Plan established, maintained, or contributed to by the Baxter Group or the Baxalta Group, as applicable, that is primarily for the benefit of Employees (including Former Employees or Baxalta Former Employees, as appropriate) who work primarily outside of the United States.

Offering ” has the meaning set forth in the Baxter ESPP.

Offering Commencement Date ” has the meaning set forth in the Baxter ESPP.

Offering End Date ” has the meaning set forth in the Baxter ESPP.

Option ” means (i) when immediately preceded by “Baxter,” an option to purchase one or more Baxter Common Shares granted under a Baxter Stock Program and outstanding immediately prior to the Distribution Date (whether or not then vested or exercisable); (ii) when immediately preceded by “Adjusted Baxter,” an option to purchase one or more Baxter Common Shares adjusted in accordance with Section 6.01 or Section 6.04 ; and (iii) when immediately preceded by “Baxalta,” an option to purchase one or more shares of Baxalta Common Stock granted by Baxalta in accordance with Section 6.01 or Section 6.04 .

Parties ” means the parties to this Agreement.

Pension Eligibility Date ” has the meaning set forth in Section 3.01(c)(i) .

Pension Split Date ” has the meaning set forth in Section 3.01(a) .

Post-Distribution Baxalta Employee ” means any Employee whose intended transfer from the Baxter Group to the Baxalta Group in connection with the Distribution is to occur after the Distribution Date, including (i) each Employee named as a Post-Distribution Baxalta Employee in Schedule 1.01 , which lists those Employees transferring only upon a Local Closing Transaction if employed in connection with a Deferred Baxalta Local Business and (ii) any other Employee whose intended transfer from the Baxter Group to the Baxalta Group in connection with the Distribution is to occur after the Distribution Date, including any Employee hired on or after the Distribution Date (but prior to the applicable Transfer Date) to the extent such Employee is primarily related to a Deferred Baxalta Local Business or is hired to replace any terminated or departing Employee who would have otherwise been a Post-Distribution Baxalta Employee.

PSU Award ” means (i) when immediately preceded by “Baxter,” a performance share unit award granted pursuant to a Baxter Stock Program and outstanding immediately prior to the Distribution Date; (ii) when immediately preceded by “Adjusted Baxter,” a performance share unit award granted pursuant to a Baxter Stock Program adjusted in accordance with Section 6.01 ; and (iii) when immediately preceded by “Baxalta,” a performance share unit award granted by Baxalta in accordance with Section 6.01 .

 

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QDRO ” means a qualified domestic relations order within the meaning of ERISA Section 206(d) and Code Section 414(p).

Regular Trading Hours ” means the period beginning at 9:30 A.M. New York City time and ending 4:00 P.M. New York City time.

RSU Award ” means (i) when immediately preceded by “Baxter,” a restricted stock unit award granted pursuant to a Baxter Stock Program and outstanding immediately prior to the Distribution Date; (ii) when immediately preceded by “Adjusted Baxter,” a restricted stock unit award granted pursuant to a Baxter Stock Program adjusted in accordance with Section 6.01 or Section 6.04 ; and (iii) when immediately preceded by “Baxalta,” a restricted stock unit award granted by Baxalta in accordance with Section 6.01 or Section 6.04 .

Securities Act ” means the U.S. Securities Act of 1933, as amended.

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

Separation and Distribution Agreement ” means the Separation and Distribution Agreement by and between the Parties, dated as of June 30, 2015.

Shared Plan Replacement Date ” means the date of the establishment of the applicable Non-U.S. Baxalta Benefit Plan.

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

Trading Day ” means the period of time during any given calendar day, commencing with the determination of the opening price on the NYSE and ending with the determination of the closing price on the NYSE, in which trading and settlement in Baxter Common Shares or Baxalta Common Stock, as applicable, is permitted on the NYSE.

Transfer Date ” means, with respect to each (i) Baxalta Employee (other than a Post-Distribution Baxalta Employee), the Distribution Date; and (ii) Post-Distribution Baxalta Employee, the date on which such person first becomes employed by the Baxalta Group following the Distribution Date. With respect to each Post-Distribution Baxalta Employee who is not employed by a Deferred Baxalta Local Business, “Transfer Date” means the date determined jointly by Baxter and Baxalta, or in the absence of such agreement, such date as Baxter may determine based on the facts and circumstances applicable to such Post-Distribution Baxalta Employee.

Transferred Employee ” has the meaning set forth in Section 2.02(a)(i) .

Transferred Flexible Spending Account Balances ” has the meaning set forth in Section 5.01(c)(iii) .

Transferred Non-U.S. Employee ” means a Transferred Employee who works primarily outside of the United States.

 

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Transition Services Agreement ” has the meaning set forth in the Separation and Distribution Agreement.

United States ” means, when used in a territorial sense, the fifty states of the United States of America and the District of Columbia, but does not, unless otherwise specifically provided, include Puerto Rico or any other territory of the United States.

USERRA ” means the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended.

ARTICLE II

GENERAL PRINCIPLES

Section 2.01 Allocation of Liabilities .

(a) Baxalta Liabilities . Except as expressly provided in this Agreement, Baxalta hereby assumes (or retains) and agrees to pay, perform, fulfill, and discharge all Liabilities to the extent relating to, arising out of, or resulting from or with respect to:

(i) the employment (or termination of employment), including with respect to any statutory or other Liabilities (whether those Liabilities are otherwise the legal responsibility of the Baxter Group or the Baxalta Group) triggered by or in connection with the Separation, of each Transferred Employee by the Baxter Group up to the applicable Transfer Date and by the Baxalta Group on and after the applicable Transfer Date (including, in each case, all Liabilities with respect to any such Baxalta Employee relating to, arising out of, or resulting from Employment Taxes, Employee Agreements, any Baxter Benefit Plan or any Baxalta Benefit Plan);

(ii) the retention of any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or non-payroll worker or any other individual in any other similar relationship to the extent the services provided by any such individual were primarily related to the Baxalta Group or the Baxalta Business; provided that, for the avoidance of doubt, this Agreement is not intended to, and does not, address any Liabilities in respect of the services provided by consulting firms, investment advisory firms, valuation advisory firms, legal advisors or other third-party entities retained to provide advice with respect to or in connection with the Separation and Distribution; and

(iii) Liabilities and responsibilities expressly assumed or retained by Baxalta pursuant to this Agreement.

(b) Baxter Liabilities . Except as expressly provided in this Agreement, the Separation and Distribution Agreement or any Ancillary Agreement other than any Conveyance and Assignment Instrument (to the extent such Ancillary Agreement provides for allocation of Liability related to services to be provided after the Distribution Date), Baxter

 

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hereby retains (or assumes) and agrees to pay, perform, fulfill, and discharge all Liabilities to the extent relating to, arising out of, or resulting from:

(i) the employment (or termination of employment) of each Baxter Retained Employee by the Baxter Group prior to, on, or after the Distribution Date (including all Liabilities with respect to any such Baxter Retained Employee to the extent relating to, arising out of, or resulting from Employment Taxes, Employee Agreements or any Baxter Benefit Plan);

(ii) the employment (or termination of employment) of each Former Employee and each Baxalta Employee unless and until such Baxalta Employee becomes a Transferred Employee (including all Liabilities to the extent relating to, arising out of, or resulting from Employment Taxes, Employee Agreements or any Baxter Benefit Plan);

(iii) the retention of any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, non-payroll worker or any other individual in any other similar relationship to the extent the services provided by any such individual were primarily related to the Baxter Group or the Baxter Business; provided that, for the avoidance of doubt, this Agreement is not intended to, and does not, address any Liabilities in respect of the services provided by consulting firms, investment advisory firms, valuation advisory firms, legal advisors or other third-party entities retained to provide advice with respect to or in connection with the Separation and Distribution; and

(iv) Liabilities and responsibilities expressly retained or assumed by Baxter pursuant to this Agreement.

(c) Other Liabilities . To the extent that this Agreement does not cover particular Liabilities or responsibilities that relate to, arise out of, or result from employment (or termination of employment), Employment Taxes, Employee Agreements or any Benefit Plan and the Parties later determine that they should be allocated in connection with the Separation, such Liabilities and responsibilities shall be handled in a manner similar to the manner in which this Agreement handles comparable Liabilities and responsibilities, subject to the mutual agreement of the Parties.

(d) Labor Relations . To the extent required by applicable Law or any contract or arrangement with a labor union, works council or similar employee organization, Baxalta shall provide notice, engage in consultation and take any similar action which may be required after the Distribution Date on its part in connection with the Separation and shall fully indemnify each member of the Baxter Group against any Liabilities arising from its failure to comply with such requirements.

 

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Section 2.02 Employment with Baxalta .

(a) Employment Transfers . The Parties intend for Baxalta Employees to transfer to the Baxalta Group and shall use their respective best efforts and cooperate with each other to effectuate this intent.

(i) Except as otherwise mutually agreed upon by the Parties, as of each Baxalta Employee’s Transfer Date, the Baxalta Group shall: (A) continue to employ (on a basis consistent with Section 2.02(b) ) each Baxalta Employee employed in a jurisdiction where employment continues automatically by operation of Law (and such individual does not object, where such right exists under applicable Law); (B) offer to employ (on a basis consistent with Section 2.02(b) ) each Baxalta Employee employed in a jurisdiction where employment does not continue automatically by operation of Law; and (C) offer to employ (on a basis consistent with Section 2.02(b) or as otherwise required by applicable Law) each Former Employee who would have been a Baxalta Employee had such Former Employee been employed on the Distribution Date, and whose right to re-employment is protected by any applicable Law, including any Former Employee covered by USERRA. Each Baxalta Employee who accepts an offer of employment with the Baxalta Group, or who continues employment with the Baxalta Group following his or her Transfer Date automatically by operation of Law (and does not object where such right exists under applicable Law), as the case may be, will be referred to in this Agreement as a “ Transferred Employee .”

(ii) The Baxter Group may terminate the employment of any Baxalta Employee who does not become a Transferred Employee as of his or her intended Transfer Date, or, if such Baxalta Employee cannot be terminated in accordance with applicable Law or otherwise, then the Baxter Group may terminate any other Employee of the Baxter Group whose employment (in the sole judgment of Baxter) is made redundant as a result of the continued retention of such Baxalta Employee. The Baxter Group may also terminate the employment of any Baxalta Employee if retaining such Employee would constitute a violation of applicable Laws or the Baxter Code of Conduct. Baxalta will be responsible for, and will indemnify the Baxter Group from and against, any Liabilities incurred or payments made (including any severance payments made) in connection with the termination of a Baxalta Employee or any other Employee of the Baxter Group pursuant to this Section 2.02(a)(ii) to the extent of any payment occurring on or after the Distribution Date.

(b) Compensation and Benefits .

(i) Except as expressly provided in this Agreement or in local Conveyance and Assumption Instruments, no Transferred Employee shall participate in any Baxter Benefit Plan following his or her Transfer Date.

(ii) Except as expressly provided in this Agreement or as otherwise required by applicable Law, the Baxalta Group shall provide to each Transferred Employee as of his or her Transfer Date (A) base salary at the same rate as provided to that Transferred Employee immediately prior to the Transfer Date, (B) cash

 

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incentive compensation opportunities that are comparable in the aggregate to those offered under the corresponding Baxter Benefit Plan(s) immediately prior to the Transfer Date, and (C) benefits under the other Baxalta Benefit Plans that are comparable in the aggregate to benefits provided under the corresponding Baxter Benefit Plans immediately prior to the Transfer Date. Nothing in the preceding sentence shall prevent the Baxalta Group from modifying the compensation and benefits of a Transferred Employee after such Transferred Employee’s Transfer Date.

(c) Service Credit . Except as otherwise expressly provided in this Agreement or to the extent it would result in a duplication of benefits, Baxalta and each Baxalta Benefit Plan shall, to the extent permitted in accordance with applicable Law, give each Transferred Employee credit for all service with the Baxter Group and shall calculate such service as it would be calculated by Baxter or under the corresponding Baxter Benefit Plan as of the applicable Transfer Date.

Section 2.03 Establishment of Baxalta Plans .

(a) Generally .

(i) U.S . Prior to the Distribution Date, Baxalta shall adopt Benefit Plans (and related trusts, if applicable, as determined by the Parties) with terms comparable in the aggregate to those of the corresponding Baxter Benefit Plans in the U.S., including in particular those listed in Schedule 2.03(a) ; provided , however , that Baxalta may limit participation in any Baxalta Benefit Plan to Transferred Employees who participated in the corresponding Baxter Benefit Plan immediately prior to the applicable Transfer Date.

(ii) Non-U.S. (excluding Puerto Rico) . Prior to the Distribution Date, the Baxalta Group shall, except as otherwise mutually agreed upon by the Parties, adopt Non-U.S. Baxalta Benefit Plans (excluding Non-U.S. Baxalta Benefit Plans with respect to Non-U.S. Baxalta Employees residing in Puerto Rico), with terms comparable in the aggregate to those of the corresponding Non-U.S. Baxter Benefit Plans; provided , however , that Baxalta may limit participation in any such Non-U.S. Baxalta Benefit Plan to Non-U.S. Baxalta Employees who are Transferred Employees and who participated in the corresponding Non-U.S. Baxter Benefit Plan immediately prior to the applicable Transfer Date. As described in Article IV , or as otherwise mutually agreed upon by the Parties from time to time, the Baxter Group shall, or shall cause the applicable Non-U.S. Baxter Benefit Plan’s related trust to, transfer to the Baxalta Group or the relevant Non-U.S. Baxalta Benefit Plan’s related trust, an amount equal to the trust Assets, insurance reserves, and other Assets of each Non-U.S. Baxter Benefit Plan relating to the Liabilities of such Non-U.S. Baxter Benefit Plan assumed by Baxalta or such Non-U.S. Baxalta Benefit Plan in accordance with this paragraph. To the extent a Non-U.S. Baxter Benefit Plan is not required to be funded by applicable Law or is not voluntarily funded, there shall be no transfer of assets by the Non-U.S. Baxter Benefit Plan or by the Baxter Group. As described in Article IV , or as otherwise mutually agreed upon by the Parties from time to time, the Baxalta Group shall, or shall cause the relevant Non-U.S. Baxalta Benefit Plan to, assume the Liabilities of the corresponding Non-U.S.

 

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Baxter Benefit Plan with respect to all benefits accrued under that Non-U.S. Baxter Benefit Plan by Non-U.S. Baxalta Employees (other than Non-U.S. Employees residing in Puerto Rico) who are Transferred Employees.

(iii) Puerto Rico . Prior to the Distribution Date, the Baxalta Group shall, except as otherwise provided in Article III or as mutually agreed upon by the Parties, adopt Non-U.S. Baxalta Benefit Plans with respect to Non-U.S. Baxalta Employees residing in Puerto Rico, with terms comparable in the aggregate to those of the corresponding Non-U.S. Baxter Benefit Plans; provided , however , that Baxalta may limit participation in any such Non-U.S. Baxalta Benefit Plan to Non-U.S. Baxalta Employees who are Transferred Employees and who participated in the corresponding Non-U.S. Baxter Benefit Plan immediately prior to the applicable Transfer Date; provided further that to the extent permitted by applicable Law, the Baxalta Group may provide for Non-U.S. Baxalta Employees residing in Puerto Rico to participate in a Baxalta Benefit Plan maintained for Baxalta Employees residing in the United States, in which event such Baxalta Benefit Plan shall be considered a Non-U.S. Baxalta Benefit Plan with respect to the portion applicable to such Non-U.S. Baxalta Employees. As described in Article III , or as otherwise mutually agreed upon by the Parties from time to time, the Baxter Group shall, or shall cause the applicable Non-U.S. Baxter Benefit Plan’s related trust to, transfer to the Baxalta Group or the relevant Non-U.S. Baxalta Benefit Plan’s related trust, an amount equal to the trust Assets, insurance reserves, and other Assets of each Non-U.S. Baxter Benefit Plan relating to the Liabilities of such Non-U.S. Baxter Benefit Plan assumed by Baxalta or such Non-U.S. Baxalta Benefit Plan in accordance with this paragraph. As described in Article III , or as otherwise mutually agreed upon by the Parties from time to time, the Baxalta Group shall, or shall cause the relevant Non-U.S. Baxalta Benefit Plan to, assume the Liabilities of the corresponding Non-U.S. Baxter Benefit Plan with respect to all benefits accrued under that Non-U.S. Baxter Benefit Plan by Non-U.S. Baxalta Employees residing in Puerto Rico who are Transferred Employees.

(b) Plan Information and Operation . Baxter shall provide Baxalta with information describing each Baxter Benefit Plan election made by a Transferred Employee that may have application following the applicable Transfer Date. Baxalta shall determine, in its sole discretion, whether to administer the Baxalta Benefit Plans using those elections or to require Transferred Employees to submit new elections with respect to the Baxalta Benefit Plans. Except as provided in this Agreement, the Distribution and the transfer of any Employee’s employment to the Baxalta Group shall not cause a distribution from or payment of benefits under any Baxter Benefit Plan. Each Party shall, upon reasonable request, provide the other Party and the other Party’s respective Affiliates, agents, and vendors all information reasonably necessary to the other Party’s operation or administration of its Benefit Plans.

Section 2.04 Non-Hire; Non-Solicit .

(a) As of the Distribution Date and until the second anniversary of the Distribution Date, Baxter shall not, and shall cause the Baxter Group not to, solicit or hire or continue to keep employed (whether as an employee, consultant, contractor or otherwise) (i) any Baxalta Employee who was an Employee of the Baxter Group or Baxalta Group at any time

 

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during the six months prior to the Distribution Date; or (ii) any Baxalta Employee who has rejected any offer of employment made by the Baxalta Group in connection with Section 2.02(a)(i) (subject in each case to the terms of Section 2.02(a)(ii) ); provided , however , that nothing in this Section 2.04(a) shall prohibit the Baxter Group from soliciting or hiring any individual who is involuntarily terminated by the Baxalta Group, or from continuing to employ any Post-Distribution Baxalta Employee.

(b) As of the Distribution Date and until the second anniversary of the Distribution Date, Baxalta shall not, and shall cause the Baxalta Group not to, solicit or hire (whether as an employee, consultant, contractor or otherwise) (i) any Baxter Retained Employee or Baxter Former Employee who was an Employee of the Baxter Group or the Baxalta Group within six months prior to the Distribution Date; or (ii) any Baxter Employee employed by the Baxalta Group who rejected any offer of employment made by the Baxter Group in connection with the Separation and Distribution; provided , however , that nothing in this Section 2.04(b) shall prohibit the Baxalta Group from soliciting or hiring any individual who is involuntarily terminated by the Baxter Group, from continuing to employ any Baxter Employee as required by applicable Law, or from employing any Baxter Employee (if any) whose transfer date to the Baxter Group by agreement of the Parties will occur after the Distribution Date.

(c) The Parties specifically acknowledge and agree that this provision is necessary to ensure stabilization of both companies after the Distribution and does not impede either company from competing in the marketplace or obtaining sufficient talent to effectively innovate, develop, grow, or sustain their respective businesses.

(d) The Parties further specifically acknowledge and agree that any remedy at law for any breach of this Section 2.04 shall be inadequate and that in the event of any actual or threatened breach of this Section 2.04 , the non-breaching party, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage.

(e) The Parties specifically acknowledge and agree that an exception may be made to this provision at the sole discretion and with the written consent of the CVP and EVP, as applicable, of Human Resources of each Party. Any exception made shall not be used as precedent to compel or allow any further exceptions.

Section 2.05 Post-Distribution Employment in Deferred Baxalta Local Businesses . The following provisions shall apply to the Deferred Baxalta Local Businesses:

(a) During the period commencing on the Distribution Date and ending on the applicable Transfer Date, Baxter or its appropriate Affiliate shall manage the employment of each Post-Distribution Baxalta Employee consistently with its management of the employment of similar Baxter Employees in the ordinary course of business (including with respect to compensation, annual and other bonuses, and other compensation, subject to Section 2.05(a)(iii)(E) below); provided that Baxter and its Affiliates shall have no obligation to make any equity grant or provide any other equity incentive to any Post-Distribution Baxalta Employee on or after the Distribution Date, and Baxalta shall have no obligation to Baxter or any of its Affiliates in respect of any equity grant or other equity incentive that is provided by Baxter

 

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or its appropriate Affiliate to any Post-Distribution Baxalta Employee on or after the Distribution Date unless and except Baxter and Baxalta have agreed in writing otherwise. Baxalta shall be responsible for all cash compensation liabilities arising during such period; provided that the payment and reimbursement for such amounts shall occur in accordance with the International Commercial Operations Agreement. Baxter shall until the time of the applicable Local Closing Transaction (or such other Transfer Date with respect to any Post-Distribution Baxalta Employee):

(i) provide Baxalta or its appropriate Affiliate with notice of (A) any material amendment to the Baxter Code of Conduct to the extent applicable to the employment of a Post-Distribution Baxalta Employee or (B) the termination of any Post-Distribution Baxalta Employee due to a violation or potential violation of Law or the Baxter Code of Conduct, or otherwise pursuant to Section 2.02(a)(ii) ;

(ii) provide Baxalta or its appropriate Affiliate with at least 30 days’ advance written notice prior to (A) making any material substantive change to the Employee Agreement of a Post-Distribution Baxalta Employee unless such change is required by applicable Law; (B) making any change to the base salary of a Post-Distribution Baxalta Employee, other than an increase in the ordinary course of business (including any change required by Law or any contract existing as of the Distribution Date or otherwise approved by Baxalta) based on the Employee’s performance rating or seniority; or (C) making any modification to a Baxter Benefit Plan in which a Post-Distribution Baxalta Employee participates if such modification would result in a significant change in the cost of such plan to the employer or the participant; and

(iii) consult with and request a recommendation from Baxalta or its appropriate Affiliate prior to (A) hiring any individual (other than in the ordinary course to replace any individual whose employment has terminated, in which case Baxter shall consult with Baxalta or its appropriate Affiliate prior to such hiring) who will be classified as a Baxalta Employee unless such headcount addition was authorized prior to the Distribution Date, (B) terminating any Post-Distribution Baxalta Employee, except due to a violation of Law or the Baxter Code of Conduct, or otherwise pursuant to Section 2.02(a)(ii) , (C) promoting any Post-Distribution Baxalta Employee to a position of Vice President or higher unless such promotion was authorized prior to the Distribution Date, (D) demoting any Post-Distribution Baxalta Employee, transferring any Post-Distribution Baxalta Employee to a location more than 20 miles from such Baxalta Employee’s current office location, or otherwise materially changing the role or responsibility of any Post-Distribution Baxalta Employee or (E) establishing targets or goals for bonus and other incentive compensation awards granted to Post-Distribution Baxalta Employees by Baxter or any member of the Baxter Group.

(b) Except as otherwise mutually agreed upon by the Parties (such as in a Conveyance and Assumption Instrument or other agreement), if a Baxalta Employee’s transfer of employment to the Baxalta Group upon the consummation of a Local Closing Transaction or otherwise causes, at the time of such transfer, a forfeiture of awards granted prior to the Distribution Date under a Baxter Stock Program (or successor thereto), Baxter shall not have any obligation, Liability or responsibility to such Baxalta Employee with respect to such

 

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forfeited awards, and Baxalta shall equitably compensate the affected Baxalta Employee for such forfeited awards in a manner determined by Baxalta in its sole discretion. The foregoing sentence shall not preclude the Parties from making arrangements, if allowed by the Baxter Stock Program (or successor thereto) and applicable Law, to permit affected Baxalta Employees to continue to hold, after the Local Closing Transaction or other Transfer Date, awards granted prior to the Distribution Date under a Baxter Stock Program (or successor thereto).

Section 2.06 Collective Bargaining . Baxalta shall cause the appropriate member of the Baxalta Group to assume all Liabilities arising under any collective bargaining agreement (including but not limited to any national, sector or local collective bargaining agreement) with respect to any Transferred Employee. To the extent necessary, Baxalta shall cause the appropriate member of the Baxalta Group to join any industrial, employer or similar association or federation if membership is required for the relevant collective bargaining agreement to continue to apply.

Section 2.07 Distributorship Model . In the event that Baxalta operates any Deferred Baxalta Local Business through a local distributor rather than through an Affiliate, Baxalta agrees to use its best efforts to cause such local distributor to employ the Baxalta Employees on similar terms and conditions of employment.

ARTICLE III

U.S. AND PUERTO RICO QUALIFIED AND NON-QUALIFIED RETIREMENT PLANS

Section 3.01 Baxalta Pension Plan .

(a) Establishment of Baxalta Pension Plan . Effective on or about May 1, 2015, Baxalta shall establish the Baxalta Pension Plan (such effective date, the “ Pension Split Date ”), which shall be substantially similar to, and which shall include benefit formulas that are the same as the benefit formulas in effect under, the Baxter Pension Plan as of the Pension Split Date. As soon as practicable after the Pension Split Date and upon receipt by Baxter of (i) a copy of the Baxalta Pension Plan; (ii) copies of certified resolutions of the Baxalta Board (or its authorized committee or other delegate) evidencing adoption of the Baxalta Pension Plan and any related trust(s) and the assumption by the Baxalta Pension Plan of the Liabilities described in Section 3.01(b) ; and (iii) either (A) a favorable determination letter issued by the Internal Revenue Service with respect to the Baxalta Pension Plan and any related trust, or (B) an opinion of counsel, which counsel and opinion are reasonably satisfactory to Baxter, with respect to the qualified status of the Baxalta Pension Plan under Code Section 401(a) and the tax-exempt status of any related trust under Code Section 501(a) (which opinion of counsel may assume that Baxalta will make a timely application for a determination letter and adopt any amendments required by the Internal Revenue Service as a condition to receipt of such letter), Baxter shall direct the trustee of the trust described in the Baxter International Inc. and Subsidiaries Pension Trust Agreement to make the transfer of Assets described in Section 3.01(b) .

 

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(b) ERISA Section 4044 Transfer .

(i) As of the Pension Split Date, Baxalta shall cause the Baxalta Pension Plan to accept all Assets and assume all Liabilities under the Baxter Pension Plan for Transferred Employees (other than Post-Distribution Baxalta Employees) (including Assets and Liabilities in respect of beneficiaries and alternate payees) and the Baxter Pension Plan shall transfer all such Assets and be relieved of such Liabilities; provided that, if any such Assets or Liabilities are transferred to the Baxalta Pension Plan on or prior to the Distribution Date in respect of any participant who does not become a Transferred Employee as of the Distribution Date, Baxter and Baxalta shall cause such Assets and Liabilities to be promptly returned to (and assumed by) the Baxter Pension Plan (effective as of the Distribution Date), with Assets and Liabilities in respect of employees who are not Transferred Employees as of the Distribution Date to be transferred to the Baxalta Pension Plan only to the extent set forth in Section 3.01(b)(ii) . The amount of Assets to be transferred from the Baxter Pension Plan to the Baxalta Pension Plan in such transfer (or transfers) shall be determined as of the Pension Split Date in accordance with, and shall comply with, Code Section 414(l) and, to the extent deemed applicable by the Parties, ERISA Section 4044. Assumptions used to determine the value (or amount) of the Assets to be transferred shall be the safe harbor assumptions specified for valuing benefits in trusteed plans under Department of Labor Regulations Section 4044.51-57 and, to the extent not so specified, shall be based on the assumptions used in the annual valuation report most recently prepared prior to the transfer by the actuary for the Baxter Pension Plan. The transfer amount described above shall be credited or debited, to the extent applicable, with a pro rata share of the actual investment earnings or losses allocable to the transfer amount for the period between the Pension Split Date (or such earlier transfer date) and an assessment date set by Baxter that is as close as practicable, taking into account the timing and reporting of valuation of assets in the trust or trusts described in the Baxter International Inc. and Subsidiaries Pension Trust Agreement, to the date upon which Assets equal in value to the transfer amount are actually transferred from the Baxter Pension Plan to the Baxalta Pension Plan. The ultimate transfer amount shall be credited or debited by the actual investment earnings or losses from the payment date to the assessment date set by Baxter above. In addition, during this period, Baxalta will be responsible for a pro rata share of trustee and administration fees attributable to the Baxalta Pension Plan assets that remain in the Baxter Pension Plan. The funding balances and shortfall amortization installments shall be divided among the Baxter Pension Plan and the Baxalta Pension Plan based on the guidance provided in Revenue Ruling 81-212 and 86-47.

(ii) As indicated in Section 3.01(b)(i) , the Parties anticipate that the Baxalta Pension Plan accept Assets and assume all Liabilities under the Baxter Pension Plan for Transferred Employees on or prior to the Distribution Date. Notwithstanding such transfer and assumption on or prior to the Distribution Date, the Parties acknowledge and agree that adjustments (including of the type described in Section 3.01(b)(i) ) may be necessary after the Distribution Date to finalize the intent of Section 3.01(b)(i) . Any such adjustments (including the transfer and assumption of Assets and Liabilities in respect thereof) will, unless the Parties have determined that the amount is significant enough to require earlier discussion, be made on or about December 31, 2015. The amount of such Assets to be transferred shall be determined as provided in Section 3.01(b)(i) and shall be subject to the applicable provisions of Section 3.01(b)(i) .

 

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(iii) If a participant in the Baxter Pension Plan who is scheduled to become a Transferred Employee terminates employment after the Pension Split Date, but before such participant’s Transfer Date, such participant’s benefit will be paid entirely by the Baxter Pension Plan (and shall include any compensation paid and service earned after the Pension Split Date) and, to the extent such benefit was taken into account in determining the amount of Assets transferred to the Baxalta Pension Plan, an appropriate adjustment shall be made. If a Transferred Employee terminates from the Baxalta Group after such Transferred Employee’s Transfer Date, but before the transfer of Assets is completed, such Transferred Employee’s benefit may initially be paid by the Baxter Pension Plan, but shall be paid by the Baxalta Pension Plan after the Asset transfer is completed, with any payment made by the Baxter Pension Plan in accordance with this sentence credited against the amount transferred to the Baxalta Pension Plan.

(iv) Periodically, at such times as agreed upon by the Parties after the initial transfer described in Section 3.01(b)(i) , Baxalta shall cause the Baxalta Pension Plan to receive Assets and assume all Liabilities under the Baxter Pension Plan with respect to Post-Distribution Baxalta Employees who become Transferred Employees (including Assets and Liabilities in respect of beneficiaries and/or alternate payees) and the Baxter Pension Plan shall transfer all such Assets and be relieved of such Liabilities. The amount of such Assets to be transferred shall be determined as provided in Section 3.01(b)(i) .

(c) Baxalta Pension Plan Provisions . The Baxalta Pension Plan shall provide that:

(i) Transferred Employees shall (A) be eligible to participate in the Baxalta Pension Plan as of the Pension Split Date, or as of the applicable Transfer Date with respect to Post-Distribution Baxalta Employees (in either case, the “ Pension Eligibility Date ”) to the extent they were eligible to participate in the Baxter Pension Plan as of the Pension Eligibility Date, and (B) receive credit for vesting, eligibility and benefit service for all service credited for those purposes under the Baxter Pension Plan as of the Pension Eligibility Date as if that service had been rendered to Baxalta;

(ii) the compensation paid by the Baxter Group to a Transferred Employee that is recognized under the Baxter Pension Plan as of the Pension Eligibility Date shall be credited and recognized for all applicable purposes under the Baxalta Pension Plan as though it were compensation from the Baxalta Group;

(iii) the accrued benefit of each Transferred Employee under the Baxter Pension Plan as of the applicable Pension Eligibility Date shall be payable under the Baxalta Pension Plan at the time and in a form that would have been permitted under the Baxter Pension Plan as in effect as of the applicable Pension Eligibility Date, with employment by the Baxter Group prior to the applicable Pension Eligibility Date treated as employment by the Baxalta Group under the Baxalta Pension Plan for purposes of determining eligibility for optional forms of benefit, early retirement benefits, or other benefit forms; provided that nothing herein shall preclude Baxalta from changing the forms of benefit available under the Baxalta Pension Plan to the extent permitted by Code Section 411(d)(6);

 

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(iv) the Baxalta Pension Plan shall assume and honor the terms of all QDROs in effect under the Baxter Pension Plan as of the Pension Eligibility Date with respect to Transferred Employees; and

(v) the Baxalta Pension Plan shall provide the additional benefit accruals, if any, required by USERRA for a Former Employee who is employed by the Baxalta Group following the Distribution Date pursuant to Section 2.02(a)(i)(C) , including any amount that relates to the period of military leave that occurred prior to the Distribution Date.

(d) Determination Letter Request . Baxalta shall submit an application to the Internal Revenue Service and the Puerto Rico Department of the Treasury either prior to, or as soon as practicable after, the Pension Split Date (but no later than the last day of the remedial amendment period as defined in applicable Code provisions) for a determination letter regarding the qualification of the Baxalta Pension Plan and the tax status of its related trust as of the Pension Split Date and shall make any amendments reasonably requested by the Internal Revenue Service to receive a favorable determination letter regarding the Baxalta Pension Plan.

(e) Baxter Pension Plan after Distribution Date . From and after the Pension Split Date, (i) the Baxter Pension Plan shall continue to be responsible for Liabilities in respect of Employees other than Transferred Employees (and for Post-Distribution Baxalta Employees until their respective Transfer Dates), and (ii) no Employees of the Baxalta Group (other than Post-Distribution Baxalta Employees until their respective Transfer Dates) shall accrue any benefits under the Baxter Pension Plan. Without limiting the generality of the foregoing, Transferred Employees shall cease to be active participants in the Baxter Pension Plan effective as of the applicable Pension Eligibility Date.

(f) Plan Fiduciaries . Prior to the Distribution Date, Baxter’s Administrative Committee and the Investment Committee shall act as the fiduciaries for the Baxalta Pension Plan as necessary. For all periods after the Distribution Date, the Parties agree that the applicable fiduciaries of each of the Baxter Pension Plan and the Baxalta Pension Plan, respectively, shall have the authority with respect to the Baxter Pension Plan and the Baxalta Pension Plan, respectively, to determine the plan investments and such other matters as are within the scope of their duties under ERISA Section 404.

(g) No Loss of Unvested Benefits; No Distributions . The transfer of any Transferred Employee’s employment to the Baxalta Group will not result in loss of that Transferred Employee’s unvested benefits under the Baxter Pension Plan or the Baxalta Pension Plan and no Transferred Employee shall be entitled to a distribution of his or her benefit under the Baxter Pension Plan as a result of such transfer of employment.

(h) Puerto Rico Employees . Transferred Employees who are participants in the Baxter Healthcare of Puerto Rico Pension Plan (the “ Baxter Puerto Rico Pension Plan ”) will have their benefits transferred to the Baxalta Pension Plan as of the Pension

 

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Split Date such that Assets transferred to the Baxalta Pension Plan will equal the present value of accrued benefits using reasonable actuarial assumptions. The terms of the Baxalta Pension Plan will include terms providing that the benefits of such Transferred Employees will be determined in accordance with the terms of the Baxter Puerto Rico Pension Plan to the extent such terms differ from those of the Baxter Pension Plan, except as otherwise required by applicable Law.

Section 3.02 Incentive Investment Plan .

(a) Establishment of Baxalta Incentive Investment Plan . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta IIP. As of the Distribution Date, the terms of the Baxalta IIP shall be substantially similar to the terms of the Baxter IIP as of the Distribution Date; provided that the investment options may be different under the Baxalta IIP. On or prior to the Distribution Date, Baxalta shall provide Baxter with (i) a copy of the Baxalta IIP; (ii) a copy of certified resolutions of the Baxalta Board (or its authorized committee or other delegate) evidencing adoption of the Baxalta IIP and the related trust(s) and the assumption by the Baxalta IIP of the Liabilities described in Section 3.02(b) ; and (iii) either (A) a favorable determination letter issued by the Internal Revenue Service with respect to the Baxalta IIP and its related trust or (B) an opinion of counsel, which counsel and opinion are reasonably satisfactory to Baxter, with respect to the qualified status of the Baxalta IIP under Code Section 401(a) and the tax-exempt status of its related trust under Code Section 501(a) (which opinion of counsel may assume that Baxalta will make a timely application for a determination letter and adopt any amendments required by the Internal Revenue Service as a condition to receipt of such letter).

(b) Transfer of Account Balances . As soon as practicable after the Distribution Date, Baxter shall cause the trustee of the Baxter IIP to transfer from the trust(s) which forms a part of the Baxter IIP to the trust(s) which forms a part of the Baxalta IIP amounts equal to the account balances of the Transferred Employees (including account balances in respect of beneficiaries and alternate payees established in relation to such individuals) under the Baxter IIP, determined as of the date of the transfer. Such transfers shall be made in cash, Baxter Common Shares, shares of Baxalta Common Stock, promissory notes evidencing outstanding loans and other Assets (including common shares of Edwards Lifesciences or Cardinal Health, Inc.) or any combination thereof in cash or in kind, as instructed by the Baxter IIP or the investment committee thereof. Baxalta shall cause the transferred amounts to be allocated among the Transferred Employees’ (and beneficiaries’ and/or alternate payees’, as applicable) Baxalta IIP accounts and to be allocated to the same investment funds as the accounts were allocated under the Baxter IIP to the extent that such investment funds are available under the Baxalta IIP and, to the extent such investment funds are not available, in the manner determined by the fiduciaries of the Baxalta IIP. Any Asset and Liability transfers pursuant to this Section 3.02 shall comply in all respects with Code Sections 414(l) and 411(d)(6).

(c) Baxalta Incentive Investment Plan Provisions . The Baxalta IIP shall provide that:

(i) Transferred Employees shall (A) be eligible to participate in the Baxalta IIP as of the applicable Transfer Date to the extent they were eligible to participate in the Baxter IIP as of the applicable Transfer Date, and (B) receive credit for vesting purposes for all service credited for that purpose under the Baxter IIP as of the applicable Transfer Date as if that service had been rendered to Baxalta;

 

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(ii) the account balance of each Transferred Employee under the Baxter IIP as of the date of the transfer of Assets from the Baxter IIP (including any outstanding promissory notes) shall be credited to such individual’s account balance under the Baxalta IIP;

(iii) the Baxalta IIP shall assume and honor the terms of all QDROs in effect under the Baxter IIP as of the Transfer Date with respect to Transferred Employees;

(iv) Baxalta shall contribute to the Baxalta IIP on behalf of each Transferred Employee an amount equal to any Matching Contributions, as defined in the Baxter IIP, that relate to Elective Deferrals made by such Transferred Employee prior to the Transfer Date, and who is not entitled to have 2015, or any portion thereof, treated as a year of service for purposes of determining such Transferred Employee’s accrued benefit as defined in either the Baxter Pension Plan, the Baxter Puerto Rico Pension Plan, or the Baxalta Pension Plan, but that were not made to the Baxter IIP prior to the Transfer Date due to limitations under the Baxter IIP on the maximum amount of Matching Contributions made in any payroll period;

(v) Baxalta shall contribute to the Baxalta IIP on behalf of each Transferred Employee who is employed on the last day of 2015 (or whose employment is terminated from the Baxalta Group by reason of death or disability following the applicable Transfer Date) an Employer Non-Matching Contribution (as such term is used in the Baxter IIP) calculated as provided in Section 5.8 of the Baxter IIP, based upon the Transferred Employee’s total compensation for the Baxter Group and the Baxalta Group during 2015; and

(vi) the Baxalta IIP shall provide the opportunity to make up Elective Deferrals, and any employer contributions, required by USERRA for a Former Employee who is employed by the Baxalta Group following the Distribution Date pursuant to Section 2.02(a)(i)(C) , including any amount that relates to the period of military leave that occurred prior to the Distribution Date.

(d) Determination Letter Request . Baxalta shall submit an application to the Internal Revenue Service either prior to, or as soon as practicable following, the Distribution Date (but no later than the last day of the remedial amendment period as defined in applicable Code provisions) for a determination regarding the qualification of the Baxalta IIP and the tax-exempt status of its related trust as of the Distribution Date and shall make any amendments reasonably requested by the Internal Revenue Service to receive a favorable determination letter regarding the Baxalta IIP.

(e) Baxter Incentive Investment Plan after Distribution Date . From and after the Distribution Date, (i) the Baxter IIP shall continue to be responsible for Liabilities in respect of Baxter Retained Employees, Former Employees and (until the applicable Transfer

 

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Date) Post-Distribution Baxalta Employees, and (ii) no Employees of the Baxalta Group (other than Post-Distribution Baxalta Employees until their respective Transfer Dates), shall accrue any benefits under the Baxter IIP. Without limiting the generality of the foregoing, Transferred Employees shall cease to be active participants in the Baxter IIP effective as of the applicable Transfer Date.

(f) Plan Fiduciaries and Stock Considerations . Prior to the Distribution Date, Baxter’s Administrative Committee and Investment Committee shall act as the fiduciaries for the Baxalta IIP as necessary. Without limiting the generality of the foregoing, the Baxter Investment Committee shall determine the initial investment funds available under the Baxalta IIP, and Baxter shall provide all Transferred Employees with all blackout notices, and comply with all other requirements necessary to transfer the accounts of participants in the Baxter IIP to the Baxalta IIP. For all periods after the Distribution Date, the Parties agree that the applicable fiduciaries of each of the Baxter IIP and the Baxalta IIP, respectively, shall have the authority with respect to the Baxter IIP and the Baxalta IIP, respectively, to determine the investment alternatives, the terms and conditions with respect to those investment alternatives and such other matters as are within the scope of their duties under ERISA Section 404.

(g) No Loss of Unvested Benefits; No Distributions . The transfer of any Transferred Employee’s employment to the Baxalta Group will not result in loss of that Transferred Employee’s unvested benefits under the Baxter IIP or the Baxalta IIP Plan and no Transferred Employee shall be entitled to a distribution of his or her benefit under the Baxter IIP as a result of such transfer of employment.

(h) Puerto Rico Employees . Effective as of or before the Distribution Date, Baxalta shall establish a defined contribution plan qualified under the Puerto Rico Internal Revenue Code for a new Puerto Rico (the “ Baxalta SIP ”). As of the Distribution Date, the terms of the Baxalta SIP shall be substantially similar to the terms of the Baxter Healthcare of Puerto Rico Savings and Investment Plan (the “ Baxter SIP ”) as of the Distribution Date (except as described in Section 3.02(f) , including the existence of different investment options). Transferred Employees who are participants in the Baxter SIP shall have their accounts in the Baxter SIP fully vested as of the Transfer Date, and shall thereafter be treated as terminated vested participants for all purposes of the Baxter SIP. Such participants shall be eligible to participate in the Baxalta SIP to the extent they were eligible to participate in the Baxter SIP as of the applicable Transfer Date, and receive credit for vesting purposes for all service credited for that purpose under the Baxter SIP as of the applicable Transfer Date as if that service had been rendered to Baxalta. The provisions of Section 3.02(c) shall also apply to the Baxalta SIP, as applicable.

Section 3.03 Supplemental Pension Plan

(a) Establishment of Baxalta SERP . Effective as of or before the Pension Split Date, Baxalta shall establish the Baxalta SERP, with terms and funding arrangements substantially similar to those of the Baxter SERP as of the Pension Split Date.

(b) Assumption of SERP Liabilities and Transfer from Baxter SERP . Except as provided below, as of a Transferred Employee’s Pension Eligibility Date, Baxalta

 

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shall, and shall cause the Baxalta SERP to, assume all Liabilities for all obligations under the Baxter SERP for the benefits of such individual (and any other individual on whose behalf Liabilities are transferred from the Baxter Pension Plan to the Baxalta Pension Plan under Section 3.01(b)(ii) ) and his or her beneficiaries and/or alternate payees determined as of the applicable Transfer Date, and Baxter and the Baxter SERP shall be relieved of all Liabilities for those benefits.

(c) Baxalta SERP Provisions . As of the Pension Split Date, the Baxalta SERP shall provide that:

(i) Transferred Employees shall (A) be eligible to participate in the Baxalta SERP to the extent they were eligible to participate in the Baxter SERP as of the applicable Pension Eligibility Date, and (B) receive credit for vesting, eligibility and benefit service for all service credited for those purposes under the Baxter SERP as of the Pension Eligibility Date as if that service had been rendered to Baxalta (provided that in the event that any such Transferred Employee receives a distribution from the Baxter SERP, the value of such distribution shall be offset against future benefits under the Baxalta SERP to the extent necessary to avoid a duplication of benefits, the terms of such offset to be set forth in the Baxalta SERP);

(ii) the compensation paid by the Baxter Group to a Transferred Employee that was recognized under the Baxter SERP as of the Pension Eligibility Date shall be credited and recognized for all applicable purposes under the Baxalta SERP as though it were compensation from the Baxalta Group;

(iii) the accrued benefit of each Transferred Employee under the Baxter SERP as of the applicable Pension Eligibility Date shall be payable under the Baxalta SERP at the same time and in the same form that would have been paid under the Baxter SERP, treating such Transferred Employee’s separation from service from the Baxalta Group as if it were a separation from service from the Baxter Group, taking into account any election made by the Transferred Employee relating to the time and form of his or her payment under the Baxter SERP; provided , however , that if a participant in the Baxter Pension Plan who is scheduled to become a Transferred Employee terminates employment after the Pension Split Date, but before such participant’s Transfer Date, and the Pension Plan benefit of such participant is transferred back to the Baxter Pension Plan pursuant to Section 3.01(b)(iii) , the accrued benefit of such participant shall be paid exclusively by the Baxter SERP and shall be calculated as if such participant had been employed continuously by the Baxter Group through such participant’s date of termination;

(iv) the Baxalta SERP shall assume and honor the terms of all arrangements relating to beneficiaries in effect and honored under the Baxter SERP as of the applicable Transfer Date with respect to Transferred Employees; and

(v) the Baxalta SERP shall provide the additional benefit accruals, if any, required by USERRA for a Former Employee who is employed by the Baxalta Group following the Distribution Date pursuant to Section 2.02(a)(i)(C) , including any amount that relates to the period of military leave that occurred prior to the Distribution Date.

 

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(d) Baxter SERP after Transfer Date . From and after a Transferred Employee’s Pension Eligibility Date, such Transferred Employee shall not participate in or accrue any benefits under the Baxter SERP. Without limiting the generality of the foregoing, each Transferred Employee shall cease to participate in the Baxter SERP effective as of the applicable Pension Eligibility Date, except as otherwise provided in Section 3.03(c)(iii) . The Baxter SERP shall continue to be responsible for Liabilities in respect of Baxter Retained Employees, Former Employees and (until the applicable Transfer Date) Post-Distribution Baxalta Employees and their beneficiaries. To the maximum extent permitted by Treasury Regulations Section 1.409A-1(h)(4), a Transferred Employee shall not be considered to have undergone a “separation from service” for purposes of Code Section 409A and the Baxter SERP solely by reason of the Separation, and, following his or her Transfer Date, the determination of whether a Transferred Employee has incurred a separation from service with respect to his or her benefit in the Baxalta SERP shall be based solely upon his performance of services for the Baxalta Group.

Section 3.04 Deferred Compensation Plan .

(a) Establishment of Baxalta DCP . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta DCP, with terms comparable in the aggregate to those of the Baxter DCP as of the Distribution Date; provided that the investment options thereunder may be different than those available under the Baxter DCP.

(b) Assumption of DCP Liabilities and Transfer from Baxter DCP .

(i) As of a Transferred Employee’s Transfer Date, Baxalta shall, and shall cause the Baxalta DCP to, assume all Liabilities for all obligations under the Baxter DCP for the benefits of such individual and his or her beneficiaries, determined as of the applicable Transfer Date, and Baxter and the Baxter DCP shall be relieved of all Liabilities for those benefits.

(ii) As of or as soon as practicable after the applicable Transfer Date, the Parties shall cooperate to cause the accounts of the applicable Transferred Employee participating in the Baxter DCP to be transferred to the Baxalta DCP. Baxalta shall (A) credit each such Transferred Employee’s account with (1) the amount deferred by such individual into the Baxter DCP as of the applicable Transfer Date, plus (2) any employer contributions, whether vested or unvested, deemed to have been made in relation to the amount described in (1), including, in each case, any earnings thereon, and (B) recognize and honor all deferral and distribution elections made by such individual (including any deferral election applicable to any bonus earned but not yet paid as of the applicable Transfer Date).

(iii) The accrued benefit of each Transferred Employee under the Baxter DCP as of the applicable Transfer Date shall be payable under the Baxalta DCP at the same time and in the same form that would have been paid under the Baxter

 

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DCP, treating such Transferred Employee’s separation from service from the Baxalta Group as if it were a separation from service from the Baxter Group, taking into account any election made by the Transferred Employee relating to the time and form of his or her payment under the Baxter DCP.

(iv) Baxalta shall credit to the account of each Transferred Employee in the Baxalta DCP who was a participant in the Baxter DCP immediately prior to the Transfer Date an amount equal to the Excess Matching Contributions and Employer Non-Matching Contributions (in each case as defined in the Baxter DCP), to which such Transferred Employee would have been entitled had such Transferred Employee been employed by the Baxter Group throughout 2015, reduced by the amount of Excess Matching Contributions and Employer Non-Matching Contributions credited to such Transferred Employee’s account in the Baxter DCP, and shall also make up any contributions required by USERRA for a Former Employee who is employed by the Baxalta Group following the Distribution Date pursuant to Section 2.02(a)(i)(C) , including any amount that relates to the period of military leave that occurred prior to the Distribution Date.

(c) Baxter DCP after Transfer Date . From and after a Transferred Employee’s Transfer Date, such individual shall not participate in or accrue any benefits under the Baxter DCP. Without limiting the generality of the foregoing, each Transferred Employee shall cease to participate in the Baxter DCP effective as of his or her Transfer Date. The Baxter DCP shall continue to be responsible for Liabilities in respect of Baxter Retained Employees, Former Employees and (until the applicable Transfer Date) Post-Distribution Baxalta Employees and their beneficiaries. To the maximum extent permitted by Treasury Regulations Section 1.409A-1(h)(4), a Transferred Employee shall not be considered to have undergone a “separation from service” for purposes of Code Section 409A and the Baxter DCP solely by reason of the Separation, and, following his Transfer Date, the determination of whether a Transferred Employee has incurred a separation from service with respect to his or her benefit in the Baxalta DCP shall be based solely upon his or her performance of services for the Baxalta Group.

ARTICLE IV

NON-U.S. RETIREMENT PLANS

Section 4.01 Establishment of Non-U.S. Retirement Plans and Transfers of Assets and Liabilities . Except as mutually agreed upon by the Parties or required under this Article IV, effective as of or before the Distribution Date, Baxalta or its appropriate Affiliate will establish pension and retirement plans (whether defined contribution or defined benefit pension plans) with terms that are reasonably comparable to those of the corresponding Non-U.S. Baxter Benefit Plan. For purposes of this Article IV , the term Non-U.S. Baxter Benefit Plan shall not include the Baxter Puerto Rico Pension Plan or the Baxter SIP.

(a) Transfer of Non-U.S. Retirement Plan Assets and Liabilities . As soon as practicable prior to, on or after the Distribution Date, except as otherwise provided in this Agreement, the Assets and Liabilities determined as of the date of the applicable local closing occurring prior to, on or after the Distribution Date (such date, the “ Applicable Closing

 

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Date ”) under the corresponding Non-U.S. Baxter Benefit Plan attributable to Transferred Non-U.S. Employees (and, with respect to each of the countries or entities listed in Schedule 4.01(a) , Former Employees) who are participants in that plan, along with any other Assets and Liabilities that Baxalta agrees to assume with respect to such plan, shall be transferred to the applicable Non-U.S. Baxalta Benefit Plan. The Non-U.S. Baxter Benefit Plan shall retain all Assets and Liabilities related to Baxter Retained Employees, Former Employees (other than Former Employees in the countries or of the entities listed in Schedule 4.01(a) ) and Post-Distribution Baxalta Employees (subject to Section 4.01(c) ), and with respect to all countries and entities set forth in Schedule 4.02(a) in accordance with Section 4.02(a) . Assets will be allocated between the plans based on the proportion of Liabilities borne by each plan. Except as otherwise mutually agreed upon by the Parties, such Liabilities will be valued using the projected benefit obligation based on plan provisions as in effect at the Applicable Closing Date and applying demographic and other assumptions used in the most recently completed valuation of the applicable Non-U.S. Baxter Benefit Plan (and taking into account the requirements of ASC 715 as it exists as of the Applicable Closing Date); provided , however , that all economic assumptions will be updated as of the Applicable Closing Date. The transfer amount described above shall be credited or debited, as applicable, with a pro rata share of the actual investment earnings or losses allocable to the transfer amount for the period between the Applicable Closing Date and an assessment date set by Baxter that is as close as practicable, taking into account the timing and reporting of valuation of the applicable Non-U.S. Baxter Benefit Plan’s Assets, to the date upon which Assets equal in value to the transfer amount are actually transferred from the applicable Non-U.S. Baxter Benefit Plan to the applicable Non-U.S. Baxalta Benefit Plan; provided that, if actual investment earnings or losses are not then determinable, Baxter and Baxalta shall then agree on a reasonable alternative methodology (which may include expected or estimated returns used for other similar purposes by Baxter in the ordinary course of business). During this period, benefits payable to Transferred Non-U.S. Employees (and, with respect to those countries or entities listed in Schedule 4.01(a) , Former Employees) shall be paid from the Non-U.S. Baxter Benefit Plan. Except as otherwise mutually agreed upon by the Parties, the ultimate transfer amount shall be reduced by the amount of these benefits and credited or debited by the actual investment earnings or losses from the payment date to the assessment date set by Baxter above. Any third party fees, costs or expenses incurred under the applicable Non-U.S. Baxter Benefit Plan during the period from the Applicable Closing Date to the assessment date set by Baxter shall be shared by the Parties based on the proportion of Liabilities borne by the applicable Non-U.S. Baxter Benefit Plan and the applicable Non-U.S. Baxalta Benefit Plan. The Parties agree to use commercially reasonable efforts to accomplish each transfer as soon as practicable on or following the Applicable Closing Date and to cooperate with each other to make such filings and disclosures and obtain such approvals as may be deemed necessary or advisable in accordance with applicable Law. Notwithstanding the foregoing, to the extent a Non-U.S. Baxter Benefit Plan is not required to be funded by applicable Law or is not voluntarily funded, there shall be no transfer of Assets by the Non-U.S. Baxter Benefit Plan or by the Baxter Group in respect thereof.

(b) Non-U.S. Baxalta Retirement Plan Provisions . Each Non-U.S. Baxalta Benefit Plan shall provide, except as otherwise provided in this Agreement or local Conveyance and Assumption Instruments that:

(i) Transferred Non-U.S. Employees (and, with respect to each of the countries or entities listed in Schedule 4.01(a) , Former Employees) shall (A) be

 

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eligible to participate in the Non-U.S. Baxalta Benefit Plan to the extent they were eligible to participate in the corresponding Non-U.S. Baxter Benefit Plan, and (B) receive credit for vesting, eligibility and benefit service to the same extent recognized by Baxter as of immediately prior to the Transfer Date for all service credited for those purposes under the corresponding Non-U.S. Baxter Benefit Plan as if that service had been rendered to Baxalta;

(ii) the compensation paid by the Baxter Group to a Transferred Non-U.S. Employee (or, with respect to each of the countries or entities listed in Schedule 4.01(a) , a Former Employee) that is recognized under the Non-U.S. Baxter Benefit Plan shall be credited and recognized for all applicable purposes under the corresponding Non-U.S. Baxalta Benefit Plan as though it were compensation from the Baxalta Group; and

(iii) the accrued benefit of each Transferred Non-U.S. Employee (or, with respect to each of the countries or entities listed in Schedule 4.01(a) , each Former Employee) under the Non-U.S. Baxter Benefit Plan that is transferred to the corresponding Non-U.S. Baxalta Benefit Plan pursuant to Section 4.01(a) shall be paid under such Non-U.S. Baxalta Benefit Plan in accordance with the terms of such Non-U.S. Baxalta Benefit Plan and applicable Law, with employment by the Baxter Group treated as employment by the Baxalta Group under the Non-U.S. Baxalta Benefit Plan for purposes of determining eligibility for optional forms of benefit, early retirement benefits, or other benefit forms.

(c) Subsequent Transfers . Periodically, at such times as agreed upon by the Parties after the initial transfer described in Section 4.01(a) , Baxalta shall cause the applicable Non-U.S. Baxalta Benefit Plan to receive Assets and assume all Liabilities under the applicable Non-U.S. Baxter Benefit Plan for Post-Distribution Baxalta Employees who become Transferred Employees (including Assets and Liabilities in respect of beneficiaries and/or alternate payees) and the applicable Non-U.S. Baxter Benefit Plan shall transfer all such Assets and be relieved of such Liabilities. The amount of such Assets to be transferred shall be determined as provided in Section 4.01(a) (and shall include any employee contributions made by such Post-Distribution Baxalta Employee between the Distribution Date and the applicable Transfer Date) and shall be subject to the applicable provisions of Section 4.01(a) .

(d) Notwithstanding the foregoing, if pension benefits are funded by individually linked insurance contracts, such contracts in respect of Transferred Employees shall be assigned to Baxalta or its applicable Subsidiary in lieu of the transfers of (and calculations of value with respect to) other Assets otherwise contemplated hereby.

Section 4.02 Shared Plan Model .

(a) Baxalta Participation in Non-U.S. Baxter Retirement Plans .

(i) In each of the countries or entities listed in Schedule 4.02(a) , Baxter or its appropriate Affiliate will permit Baxalta or its appropriate Affiliate to continue to participate in the Non-U.S. Baxter Benefit Plan providing retirement

 

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benefits in that country after the Distribution. Except as otherwise mutually agreed upon by the Parties, such continued participation is subject to the following requirements: (A) Baxter or its appropriate Affiliate will remain the principal employer under the plan; (B) the applicable Baxter pension fund (or such other party or parties have such amendment rights under the terms of the applicable plan, if any) may amend the plan at any time; (C) any third party fees, costs or expenses shall be shared by the Parties on the basis of their proportionate share of the insured salaries under the Non-U.S. Baxter Benefit Plan; (D) Baxter shall determine the benefit formula or structure under the plan (which shall apply uniformly to all similarly situated participants); and (E) such continued participation may not extend beyond two years after the Distribution Date, unless otherwise mutually agreed by each Party’s CVP or EVP, as applicable, of Human Resources (or such individual’s delegate).

(ii) At or before the end of the shared plan period, in each of the countries or entities listed in Schedule 4.02(a) , Baxalta or its appropriate Affiliate shall establish its own plan or arrangement to deliver the benefits due to Baxalta Employees (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employees) under the applicable Non-U.S. Baxter Benefit Plan or otherwise shall be responsible for all costs incurred by the Parties in connection with winding up or terminating the participation of Baxalta or its appropriate Affiliate in the Non-U.S. Baxter Benefit Plan. Following the establishment of the Non-U.S. Baxalta Benefit Plan, the Assets and Liabilities of the Non-U.S. Baxter Benefit Plan attributable to Baxalta Employees (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employees) who are participants in that plan shall be transferred to the applicable Non-U.S. Baxalta Benefit Plan. Assets will be allocated between the plans based on the proportion of Liabilities borne by each plan. Except as otherwise mutually agreed upon by the Parties, such Liabilities will be valued as of the Shared Plan Replacement Date using the projected unit credit method based on plan provisions as in effect at the Shared Plan Replacement Date and applying the demographic and other assumptions used in the most recently completed valuation of the applicable Non-U.S. Baxter Benefit Plan (and taking into account the requirements of ASC 715 as it exists as of the Shared Plan Replacement Date); provided , however , that all economic assumptions will be updated as of the Shared Plan Replacement Date. The transfer amount described above shall be credited or debited, as applicable, with a pro rata share of the actual investment earnings or losses allocable to the transfer amount for the period between the Shared Plan Replacement Date and an assessment date set by Baxter that is as close as practicable, taking into account the timing and reporting of valuation of the applicable Non-U.S. Baxter Benefit Plan’s Assets, to the date upon which Assets equal in value to the transfer amount are actually transferred from the applicable Non-U.S. Baxter Benefit Plan to the applicable Non-U.S. Baxalta Benefit Plan; provided that, if actual investment earnings or losses are not then determinable, Baxter and Baxalta shall then agree on a reasonable alternative methodology (which may include expected or estimated returns used for other similar purposes by Baxter in the ordinary course of business). During this period, benefits payable to Baxalta Employees (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employees) shall be paid from the Non-U.S. Baxter Benefit Plan. Except as otherwise mutually agreed upon by the Parties, the ultimate transfer amount shall be

 

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reduced by the amount of these benefits and credited or debited by the actual investment earnings or losses from the payment date to the assessment date set by Baxter above. Any third party fees, costs or expenses incurred under the applicable Non-U.S. Baxter Benefit Plan during the period from the Shared Plan Replacement Date to the assessment date set by Baxter shall be shared by the Parties on the basis of their proportionate share of the insured salaries under the Non-U.S. Baxter Benefit Plan. The Parties agree to use commercially reasonable efforts to accomplish each transfer as soon as practicable following the Shared Plan Replacement Date and to cooperate with each other to make such filings and disclosures and obtain such approvals as may be deemed necessary or advisable in accordance with applicable Law. Such transfers and any actuarial assumptions shall be subject to such minimum consents, approvals and other legal requirements as may apply under applicable Law, including, if required, the consent of any affected plan participant or any other third party. Notwithstanding the foregoing, to the extent a Non-U.S. Baxter Benefit Plan is not required to be funded by applicable Law or is not voluntarily funded, there shall be no transfer of Assets by the Non-U.S. Baxter Benefit Plan or by the Baxter Group in respect thereof.

(b) Non-U.S. Baxter Retirement Plan Provisions . Each Non-U.S. Baxter Benefit Plan described in Section 4.02(a) shall provide, except as otherwise provided in this Agreement, that:

(i) Baxalta Employees (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employees) shall (A) be eligible to participate in the Non-U.S. Baxter Benefit Plan to the extent they were eligible to participate in such plan immediately prior to the Distribution Date, and (B) receive credit for vesting, eligibility and benefit service for all service with the Baxalta Group during the shared plan period as if that service had been rendered to Baxter;

(ii) the compensation paid by the Baxalta Group to a Baxalta Employee (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , a Former Employee) during the shared plan period shall be credited and recognized for all applicable purposes under the corresponding Non-U.S. Baxter Benefit Plan as though it were compensation from the Baxter Group; and

(iii) the accrued benefit of each Baxalta Employee (and, with respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employee) under the Non-U.S. Baxter Benefit Plan shall be paid at the time and in a form provided under such plan, with employment by the Baxalta Group during the shared plan period treated as employment by the Baxter Group under the Non-U.S. Baxter Benefit Plan for purposes of determining eligibility for optional forms of benefit, early retirement benefits, or other benefit forms.

(c) Subsequent Transfers . Periodically, at such times as agreed upon by the Parties after the initial transfer described in Section 4.02(a) , Baxalta shall cause the applicable Non-U.S. Baxalta Benefit Plan to receive Assets and assume all Liabilities under the applicable Non-U.S. Baxter Benefit Plan for Post-Distribution Baxalta Employees (and, with

 

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respect to each of the countries or entities marked with an asterisk in Schedule 4.02(a) , Former Employees) who become Transferred Employees (including Assets and Liabilities in respect of beneficiaries and/or alternate payees) and the applicable Non-U.S. Baxter Benefit Plan shall transfer all such Assets and be relieved of such Liabilities. The amount of such Assets to be transferred shall be determined as provided in Section 4.02(a) (and shall include any employee contributions made by such Post-Distribution Baxalta Employee between the Distribution Date and the applicable Transfer Date) and shall be subject to the applicable provisions of Section 4.02(a) .

ARTICLE V

WELFARE AND FRINGE BENEFIT PLANS

Section 5.01 Health and Welfare Plans .

(a) Establishment of Baxalta Health and Welfare Plans . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta Health and Welfare Plans, with terms comparable in the aggregate to those of the corresponding Baxter Health and Welfare Plans as of the Distribution Date unless otherwise provided in this Article V.

(b) Waiver of Conditions; Benefit Maximums . Baxalta shall, to the extent commercially reasonable and permitted under applicable Law and, with respect to Non-U.S. Health and Welfare Plans, to the extent applicable, cause the Baxalta Health and Welfare Plans to:

(i) with respect to initial enrollment (whether passive or active) prior to, as of or following the applicable Transfer Date, waive:

(A) all limitations as to preexisting conditions, exclusions, and service conditions with respect to participation and coverage requirements applicable to any Transferred Employee, other than limitations that were in effect with respect to the Transferred Employee under the applicable Baxter Health and Welfare Plan as of immediately prior to such individual’s Transfer Date, and

(B) any waiting period limitation or evidence of insurability requirement applicable to a Transferred Employee other than limitations or requirements that were in effect with respect to such Transferred Employee under the applicable Baxter Health and Welfare Plan as of immediately prior to such individual’s Transfer Date; and

(ii) take into account:

(A) with respect to aggregate annual, lifetime, or similar maximum benefits available under the Baxalta Health and Welfare Plans, a Transferred Employee’s prior claim experience under the Baxter Health and Welfare Plans and any Benefit Plan that provides leave benefits; and

 

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(B) any eligible expenses incurred by a Transferred Employee and his or her covered dependents during the portion of the plan year of the applicable Baxter Health and Welfare Plan ending on the applicable Transfer Date to be taken into account under such Baxalta Health and Welfare Plan for purposes of satisfying all deductible, coinsurance, and maximum out-of-pocket requirements applicable to such Transferred Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Baxalta Health and Welfare Plan.

(c) Allocation of Health and Welfare Assets and Liabilities .

(i) General Principles . Notwithstanding any other provision hereof and except as otherwise agreed between the Parties, (A) Baxter shall retain all Liabilities relating to Incurred Claims of Baxter Retained Employees and Former Employees under the Baxter Health and Welfare Plans, and shall also retain Assets (including, without limitation, Medicare reimbursements, pharmaceutical rebates, and similar items) associated with such Incurred Claims and (B) Baxalta shall be responsible for Incurred Claims of Baxalta Employees from and after the applicable Transfer Date. Baxalta shall be responsible for all Liabilities relating to Incurred Claims under any Baxalta Health and Welfare Plan and shall also retain Assets (including, without limitation, Medicare reimbursements, pharmaceutical rebates, and similar items) associated with such Incurred Claims.

(ii) Disability Benefits. Notwithstanding any other provision hereof and except as otherwise agreed between the Parties, (A) Baxter shall be responsible for Incurred Claims (including ongoing benefit payments) of Baxter Retained Employees and Former Employees for short- and long-term disability benefits, regardless of when the applicable Incurred Claim was incurred and (B) subject to the immediately following sentence, Baxalta shall be responsible for Incurred Claims (including ongoing benefit payments) of Baxalta Employees from and after the applicable Transfer Date for short-term disability benefits and long-term disability benefits. Notwithstanding the foregoing, a Baxalta Employee who is on short-term disability leave on the Transfer Date and who subsequently qualifies for long-term disability without an intervening new Incurred Claim shall receive long-term disability benefits from the Baxter long-term disability plan, but all other benefits attributable to his or her disability (including continued pension accrual, if applicable, and participation in any medical or life insurance plan for disabled persons) shall be provided by the applicable Baxalta Benefit Plan, if any, or otherwise be the responsibility of Baxalta, and if Baxalta does not sponsor a plan providing any such benefits, such Baxalta Employee shall not be entitled to such benefits from any Baxter Benefit Plan.

(iii) Flexible Spending Accounts . Except as set forth on Schedule 5.01(c)(iii) , the Parties shall take all actions necessary to ensure that, effective as of the Distribution Date (or, if later, the Transfer Date applicable to a Post-Distribution Baxalta Employee), (A) the health care and dependent care flexible spending accounts of Transferred Employees (whether positive or negative) (the “ Transferred Flexible

 

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Spending Account Balances ”) under the applicable Baxter Health and Welfare Plan shall be transferred to the corresponding Baxalta Health and Welfare Plan; (B) the elections, contribution levels and coverage of the applicable Transferred Employees shall apply under the Baxalta Health and Welfare Plan in the same manner as under the corresponding Baxter Health and Welfare Plan; and (C) the applicable Transferred Employees shall be eligible for reimbursement from the Baxalta Health and Welfare Plan on the same basis and the same terms and conditions as under the corresponding Baxter Health and Welfare Plan. As soon as practicable after the Distribution Date, and in any event within 30 business days after the amount of the Transferred Flexible Spending Account Balances is determined, Baxter shall pay Baxalta the net aggregate amount of the Transferred Flexible Spending Account Balances, if such amount is positive, and Baxalta shall pay Baxter the net aggregate amount of the Transferred Flexible Spending Account Balances, if such amount is negative.

(d) Retiree Health Care Plan and Retiree Life Insurance . Notwithstanding any other provision hereof (or any other action taken by Baxter and Baxalta on or prior to the Distribution Date, including any assignment and assumption of Assets or Liabilities related thereto), Baxter shall retain the Liabilities and responsibility for all obligations under the Baxter Retiree Health Care Plan and the Baxter Health and Welfare Plan (solely with respect to life insurance benefits in the case of the Baxter Health and Welfare Plan) for benefits due to Baxter Retained Employees and Former Employees, and shall also retain Assets, including, without limitation, Medicare reimbursements, pharmaceutical rebates, and similar items, associated with such benefits. Effective as of or before the Distribution Date, Baxalta shall establish a health care plan for retirees, with terms comparable in the aggregate to the Baxter International Inc. Welfare Plan for Retirees and Disabled Individuals, provided that the Baxalta Plan shall not be required to provide any benefits previously provided by the Baxter International Inc. and Subsidiaries Medical and Dental Plan for Disabled Individuals prior to its merger into the Baxter International Inc. Welfare Plan for Retirees and Disabled Individuals.

(e) Baxter Health and Welfare Plans after Distribution Date . Transferred Employees shall cease to participate in the Baxter Health and Welfare Plans effective as of their respective Transfer Dates.

(f) Shared Health and Welfare Plans . To the extent that, following the Distribution Date, there is any Non-U.S. Health and Welfare Plan pursuant to which health and welfare benefits are provided to Employees of both the Baxter Group and the Baxalta Group, the Parties or their appropriate Affiliates shall share the costs for such shared plan, except as otherwise mutually agreed upon by the Parties. Any Baxter Affiliate or Baxalta Affiliate may withdraw from or otherwise cease to participate in any such shared plan following the Distribution Date upon at least 90 days’ advance written notice to the other participating employer(s) of such withdrawal or cessation.

(g) Multi-National Pooling Arrangements . For purposes of this provision, the term “multi-national pooling arrangement” means a contract or arrangement that facilitates the purchase or provision of employee benefits. Baxter shall retain all Assets (including, without limitation, rights to dividends and similar items) with respect to employee benefits-related pooling contracts to which any member of the Baxter Group is a party or under

 

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which any member of the Baxter Group pays the premiums. From and after the Distribution Date, Baxalta shall retain all Assets (including, without limitation, rights to dividends and similar items) with respect to employee benefits-related pooling contracts to which any member of the Baxalta Group is a party or under which any member of the Baxalta Group pays the premiums.

(h) Life Insurance Premium Reserve Refund . The Parties acknowledge and agree that a cash payment in respect of surplus life insurance premiums paid prior to the Distribution Date is expected to be received by the Baxter Group in late 2015 or early 2016. Promptly following the Baxter Group’s receipt of any such amounts, Baxter shall notify Baxalta of the amount of such payment attributable to employee-paid premiums with respect to Transferred Employees and shall promptly pay such amounts to the account or accounts directed by Baxalta and Baxalta shall use such amounts for the benefit of the applicable employees (whether through a premium holiday, reduced premiums or otherwise).

Section 5.02 COBRA and HIPAA . Baxter shall continue to be responsible for compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the Baxter Health and Welfare Plans with respect to any (a) Baxter Retained Employees and any Former Employees (and their covered dependents) who incur a qualifying event under COBRA on, prior to, or following the Distribution Date, (b) Baxalta Employees who do not at any time become Transferred Employees (and their covered dependents) who incur a qualifying event under COBRA on, prior to, or following the Distribution Date, and (c) other Baxalta Employees (and their covered dependents), with respect to qualifying events under COBRA incurred prior to or on the applicable Transfer Date. Baxalta shall assume responsibility for compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the Baxalta Health and Welfare Plans with respect to any Transferred Employees (and their covered dependents) who incur a qualifying event or loss of coverage under the Baxalta Health and Welfare Plans after their respective Transfer Dates. The Parties agree that the consummation of the transactions contemplated by the Separation and Distribution Agreement shall not constitute a COBRA qualifying event for any purpose of COBRA.

Section 5.03 Vacation, Holidays and Leaves of Absence . Effective as of the applicable Transfer Date in accordance with Section 2.01(a)(i) , Baxalta shall be responsible for any and all Liabilities to, or relating to, Transferred Employees in respect of vacation, holiday, personal days, sick days, annual leave or other leave of absence, and required payments related thereto. Baxter shall retain all Liabilities with respect to vacation, holiday, annual leave or other leave of absence, and required payments related thereto, for each Baxter Retained Employee and Former Employee, as well as Baxalta Employees until the applicable Transfer Date of such Baxalta Employees.

Section 5.04 Severance and Unemployment Compensation . Effective as of the applicable Transfer Date, Baxalta shall be responsible for any and all Liabilities to, or relating to, Transferred Employees in respect of severance and unemployment compensation. Subject to any specific agreement to the contrary in the Separation and Distribution Agreement or any Ancillary Agreement and subject to Section 2.02(a)(ii) , Baxter shall be responsible for any and all Liabilities to, or relating to, Baxter Retained Employees and Former Employees, as

 

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well as Baxalta Employees until an applicable Transfer Date occurs with respect to such Baxalta Employees, in respect of severance and unemployment compensation, regardless of whether the event giving rise to the Liability occurred prior to, on, or following the Distribution Date. In the event that an employee receiving severance pay under the Baxter severance plan is hired by Baxalta or an employee receiving severance pay under the Baxalta severance plan is hired by Baxter, the remaining severance payable to the employee under the terms of the Baxter severance plan (or the Baxalta severance plan, as applicable), if any, shall (to the extent Baxter is, or would be upon such hiring, processing Baxalta’s payroll with respect to such employee at such time) be paid in a single lump sum to the extent permitted by Code Section 409A and, if not so permitted, shall be forfeited.

Section 5.05 Workers’ Compensation . Except as required by applicable Law or as otherwise determined jointly by the Parties as a result of the requirements of any Governmental Authority, all United States workers’ compensation Liabilities relating to, arising out of, or resulting from any claim (a) by Employees designated internally as working for or assigned to the BioScience or BioLife commercial units, to the extent such claim was incurred prior to May 1, 2015, shall be assumed, or retained as the case may be, by Baxalta as of the Transfer Date or (b) incurred on or after May 1, 2015 shall be assumed, or retained as the case may be, by the Party (or its applicable Subsidiary) that employed such Employee as of the time of such claim. The Baxter Group shall be responsible for all Liabilities relating to, arising out of, or resulting from any United States workers’ compensation claims incurred prior to May 1, 2015 unless expressly specified otherwise in the immediately preceding sentence or as required by applicable Law. Each member of the Baxalta Group and the Baxter Group shall cooperate with respect to any notification to appropriate governmental agencies of the disposition and the issuance of new, or the transfer of existing, workers’ compensation insurance policies and claims handling contracts.

ARTICLE VI

EQUITY, INCENTIVE, AND DIRECTOR AND EXECUTIVE COMPENSATION PROGRAMS

Section 6.01 Equity Incentive Programs .

(a) Options, PSUs and RSUs . The Parties shall use commercially reasonable efforts to take all actions necessary or appropriate so that each outstanding Baxter Option, Baxter PSU Award, or Baxter RSU Award granted under a Baxter Stock Program shall be adjusted or converted as set forth in this Section 6.01 . This Section 6.01(a) shall not apply to grants (including those Baxter RSU Awards deferred pursuant to the Baxter Directors’ DCP) made under the Baxter Directors’ Plan (or any successor or predecessor plan), and the sole provisions with respect to the adjustment and conversion of those grants are set forth in Section 6.04 .

(i) Baxter Options . As determined by the Baxter Compensation Committee pursuant to its authority under the applicable Baxter Stock Program, each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014) that remains outstanding as of immediately prior to the

 

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Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into both an Adjusted Baxter Option and a Baxalta Option. As determined by the Baxter Compensation Committee pursuant to its authority under the applicable Baxter Stock Program, each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014), but prior to the Distribution Date that remains outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into (x) an Adjusted Baxter Option in the case of Baxter Employees and Baxter Former Employees or (y) a Baxalta Option in the case of Baxalta Employees or Baxalta Former Employees. Each such adjusted or converted Option shall, except as otherwise provided in this Section 6.01 , be subject to the same terms and conditions (including with respect to vesting) after the Distribution Date as applicable to such Baxter Option immediately prior to the Distribution Date; provided , however , that upon such adjustment or conversion:

(A) with respect to each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014), the number of Baxter Common Shares subject to such Option shall be unchanged from the number of Baxter Common Shares that were subject to the original unadjusted Baxter Option;

(B) with respect to each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014), the number of shares of Baxalta Common Stock subject to the Baxalta Option issued with respect to such Option, rounded down to the nearest whole share, shall be equal to the product obtained by multiplying (1) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date times (2) the Distribution Ratio;

(C) with respect to each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014), the number of Baxter Common Shares subject to such Adjusted Baxter Option (if any), rounded down to the nearest whole number, shall be equal to (1) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date, divided by (2) the Baxter Percentage;

(D) with respect to each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014), the number of shares of Baxalta Common Stock subject to the Baxalta Option into which such Baxter Option is converted (if any), rounded down to the nearest whole number, shall be equal to (1) the product obtained by multiplying (xx) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date times (yy) the Distribution Ratio, divided by (2) the Baxalta Percentage;

 

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(E) the per share exercise price of each Adjusted Baxter Option, rounded up to the nearest hundredth of a cent, shall be equal to (1) the Baxter Pre-Distribution Stock Value minus (2) the Baxter Pre-Distribution Option Value; and

(F) the per share exercise price of each Baxalta Option, rounded up to the nearest hundredth of a cent, shall be equal to (1) the Baxalta Stock Value minus (2) the Baxalta Pre-Distribution Option Value;

provided , however , that the exercise price, the number of Baxter Common Shares and shares of Baxalta Common Stock subject to such options, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Code Section 409A; provided , further , that, in the case of any Baxter Option to which Code Section 421 applies by reason of its qualification under Code Section 422 as of immediately prior to the Distribution Date, the exercise price, the number of Baxter Common Shares and shares of Baxalta Common Stock subject to such option, and the terms and conditions of exercise of such option shall be determined in a manner consistent with the requirements of Code Section 424(a).

(ii) Baxter PSU Awards . As determined by the Baxter Compensation Committee pursuant to its authority under the applicable Baxter Stock Program, prior to the Distribution Date, Baxter shall, notwithstanding the existing terms of such awards, cause such Baxter Awards to be equitably adjusted. Each Baxter PSU Award granted prior to January 1, 2015 that remains outstanding as of immediately prior to the Distribution Date shall be converted (regardless of by whom held, and whether or not vested or unvested) into (A) a number of Baxter Awards equal to the number of Baxter Common Shares payable in respect of such Baxter Award and (B) a number of Baxalta Awards equal to the product obtained by multiplying (1) the number of Baxter Common Shares payable in respect of such Baxter PSU Award times (2) the Distribution Ratio, in each case as determined by Baxter’s Compensation Committee. The Baxter Awards and Baxalta Awards received upon conversion of Baxter PSU Awards in accordance with this Section 6.01(a)(ii) both shall be subject to substantially the same terms and conditions (including with respect to vesting) immediately following the Distribution Date as applicable immediately prior to the Distribution Date for those Baxter Awards from which such Baxter Awards and Baxalta Awards were converted.

(iii) Baxter RSU Awards . Each holder of Baxter RSU Awards granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014) that remain outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall receive (in addition to retaining such Baxter RSU Awards) concurrently with the Distribution on the Distribution Date a number of Baxalta RSU Awards equal to the product obtained by multiplying (x) the number of such Baxter RSU Awards held by such holder times (y) the Distribution Ratio. Each Baxter RSU Award granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014) but prior to the Distribution Date that remains outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into (A) an Adjusted Baxter RSU Award in the case of Baxter

 

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Employees and Baxter Former Employees or (B) a Baxalta RSU Award in the case of Baxalta Employees or Baxalta Former Employees. Except as set forth in this Section 6.01(a)(iii) , all Adjusted Baxter RSU Awards and Baxalta RSU Awards issued in accordance with this Section 6.01(a)(iii) shall be subject to substantially the same terms and conditions (including with respect to vesting) immediately following the Distribution Date as applicable immediately prior to the Distribution Date for those Baxter RSU Awards from which such Adjusted Baxter RSU Awards and Baxalta RSU Awards were converted; provided , however , that with respect to each Baxter RSU Award granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014):

(A) the number of units represented by an Adjusted Baxter RSU Award shall be equal to (1) the number of units subject to the Baxter RSU Award immediately prior to the Distribution Date, divided by (2) the Baxter Percentage;

(B) the number of units represented by a Baxalta RSU Award shall be equal to (1) the product obtained by multiplying (xx) the number of units subject to the Baxter RSU Award immediately prior to the Distribution Date times (yy) the Distribution Ratio, divided by (2) the Baxalta Percentage.

(iv) Notwithstanding the foregoing, the Parties may mutually agree not to adjust (or to otherwise adjust as they deem appropriate) certain outstanding Baxter equity-based awards pursuant to the foregoing provisions of this Section 6.01 to the extent such actions would create or trigger adverse legal, accounting or tax consequences or in order to comply with any Employee Agreement or similar agreement with any affected Employee.

(b) Miscellaneous Award Terms . After the Distribution Date, Adjusted Baxter Awards, regardless of by whom held, shall be settled by Baxter, and Baxalta Awards, regardless of by whom held, shall be settled by Baxalta. Except as otherwise provided in this Agreement, with respect to grants described in this Section 6.01 , (i) no Transferred Employee shall be treated as having incurred a termination of employment with respect to any Baxter Award solely by reason of the transfer of employment, (ii) employment with the Baxter Group shall be treated as employment with Baxalta with respect to Baxalta Awards held by Baxter Retained Employees, and (iii) employment with the Baxalta Group shall be treated as employment with Baxter with respect to Adjusted Baxter Awards held by Baxalta Employees. In addition, neither the Separation nor the Distribution (including, for the avoidance of doubt, any Local Closing Transaction) shall constitute a termination of employment for any Employee for purposes of any Adjusted Baxter Award or any Baxalta Award. Following the Distribution Date, for any award adjusted or otherwise received in accordance with this Section 6.01 , any reference to a “change in control,” “change of control” or similar definition in an award agreement, employment agreement or Baxter Stock Program applicable to such award (A) with respect to Adjusted Baxter Awards, shall be deemed to refer to a “change in control,” “change of control” or similar definition as set forth in the applicable award agreement, employment agreement or Baxter Stock Program (a “ Baxter Change of Control ”), and (B) with respect to Baxalta Awards, shall be deemed to refer to a “change in control,” “change of control” or similar definition as

 

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defined in the Baxalta Equity Plan (a “ Baxalta Change of Control ”). Without limiting the foregoing, with respect to provisions related to vesting of awards, a Baxter Change of Control shall be treated as a Baxalta Change of Control for purposes of Baxalta Awards held by Baxter Retained Employees or Baxter Former Employees, and a Baxalta Change of Control shall be treated as a Baxter Change of Control for purposes of Adjusted Baxter Awards held by Baxalta Employees or Baxalta Former Employees. The Distribution shall not, in and of itself, be treated as either a Baxter Change of Control or a Baxalta Change of Control

(c) Tax Reporting and Withholding . Following the Distribution Date, it is generally expected that (i) Baxter will be responsible for all income, payroll and other tax remittance and reporting related to income of Baxter Retained Employees, Baxter Former Employees, and individuals who continue to be Baxter non-employee directors immediately following the Distribution Date in respect of Adjusted Baxter Awards and Baxalta Awards; and (ii) Baxalta will be responsible for all income, payroll and other tax remittance and reporting related to income of Transferred Employees, Baxalta Former Employees and Baxalta non-employee directors who do not continue to be Baxter non-employee directors immediately following the Distribution Date in respect of Adjusted Baxter Awards and Baxalta Awards. Baxter or Baxalta, as applicable, shall facilitate performance by the other Party of its obligations hereunder by promptly remitting amounts or shares withheld in conjunction with a transfer of shares or cash, either (as mutually agreed by the Parties) directly to the applicable taxing authority or to the other Party for remittance to such taxing authority. The Parties will cooperate and communicate with each other and with third-party providers to effectuate withholding and remittance of taxes, as well as required tax reporting, in a timely, efficient and appropriate manner. Baxter and Baxalta shall, to the extent practicable, (x) treat Baxalta (or a member of the Baxalta Group designated by Baxter) as a “successor employer” and Baxter (or the appropriate member of the Baxter Group) as a “predecessor,” within the meaning of Sections 3121(a)(1) and 3306(b)(1) of the Code, with respect to Baxalta Employees (upon the Transfer Date for such Baxalta Employee) for purposes of taxes imposed under the United States Federal Unemployment Tax Act or the United States Federal Insurance Contributions Act, and (y) cooperate with each other to avoid, to the extent possible, the filing of more than one IRS Form W-2 with respect to each Baxalta Employee for the year in which the Transfer Date for such Baxalta Employee occurs. The obligations to cooperate and support the other in respect of such tax withholding and remittance shall not continue beyond the termination or expiration of such or similar transition services under the Transition Services Agreement.

(d) Registration and Other Regulatory Requirements . As soon as possible following (or prior to) the Distribution Date, but in any case before the date of issuance of any shares of Baxalta Common Stock pursuant to the Baxalta Equity Plan, Baxalta agrees to file a Form S-8 Registration Statement (or such other registration statement as may be permitted in lieu thereof if a Form S-8 Registration Statement is not then available for any such awards to be granted in accordance with the terms of this Agreement) with respect to, and to cause to be registered pursuant to the Securities Act, the shares of Baxalta Common Stock authorized for issuance under the Baxalta Equity Plan as required pursuant to the Securities Act. The Parties shall take such additional actions as are deemed necessary or advisable to effectuate the foregoing provisions of this Section 6.01 , including compliance with securities Laws and other legal requirements associated with equity compensation awards in affected non-U.S. jurisdictions. Baxter agrees to facilitate the adoption and approval of the Baxalta Equity Plan consistent with the requirements of Treasury Regulations Section 1.162-27(f)(4)(iii).

 

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(e) Baxter Equity-Based Awards in Certain Non-U.S. Jurisdictions . Notwithstanding the foregoing provisions of this Section 6.01 , the Parties may mutually agree, in their sole discretion (including as set forth in Schedule 6.01(e) ), not to adjust certain outstanding Baxter equity-based awards pursuant to the foregoing provisions of this Section 6.01 , where those actions would create or trigger adverse legal, accounting or tax consequences for Baxter, Baxalta, and/or the affected non-U.S. award holders. In such circumstances, Baxter and/or Baxalta may take any action necessary or advisable to prevent any such adverse legal, accounting or tax consequences, including, but not limited to, agreeing that the outstanding Baxter equity-based awards of the affected non-U.S. award holders shall terminate in accordance with the terms of the Baxter Stock Programs and the underlying award agreements, in which case Baxalta or Baxter, as applicable, shall equitably compensate the affected non-U.S. award holders in an alternate manner determined by Baxalta or Baxter, as applicable, in its sole discretion, or apply an alternate adjustment method. Where and to the extent required by applicable Law or tax considerations outside the United States, the adjustments described in this Section 6.01 shall be deemed to have been effectuated immediately prior to the Distribution Date.

Section 6.02 Employee Stock Purchase Plan .

(a) Baxter ESPP . The administrator of the Baxter ESPP shall take all actions necessary and appropriate to provide that: (i) the final purchases to be made thereunder by Baxalta Employees may, subject to clause (iv), occur (and reasonable time is provided to allow such purchases to occur) on or before the applicable Transfer Date to allow such participants to purchase Baxter Common Shares under the Baxter ESPP on or prior to such Transfer Date; (ii) all participant payroll deductions and other contributions under the Baxter ESPP by Baxalta Employees shall cease on or before the final purchases by such Baxalta Employees pursuant to in clause (i) of this paragraph; (iii) subject to clause (iv), Baxalta Employees in the Baxter ESPP shall not be eligible to make any future purchases or participate in any future Offerings (as defined in the Baxter ESPP) following the applicable Transfer Date; and (iv) any cash remaining in the Baxter ESPP account of any Baxalta Employee described in clause (iii) shall either be used to make purchases of Baxter Common Shares under the Baxter ESPP as of the next regularly scheduled purchase date under the Baxter ESPP or, to the extent required under applicable local Law, refunded to such Baxalta Employee. For purposes of this paragraph, the administrator of the Baxter ESPP may establish an alternate Offering End Date (as defined in the Baxter ESPP) for a sub-plan of the Baxter ESPP, as it determines to be necessary or advisable to accommodate the operation and administration of the sub-plan.

(b) Establishment of Baxalta ESPP . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta ESPP, with terms substantially similar to those of the Baxter ESPP as of the Distribution Date; provided , however , that Baxalta may delay implementation of the Baxalta ESPP or otherwise choose not to establish such Baxalta ESPP in one or more countries (i) to the extent necessary to complete those actions and undertakings that Baxalta, in its sole discretion, determines to be necessary or advisable to comply with applicable Law or (ii) if Baxalta determines, in its sole discretion, that establishing and maintaining such Baxalta ESPP in such country would not be commercially reasonable in light of the facts and circumstances.

 

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Section 6.03 Annual Bonus . The Baxalta Group shall be responsible for all annual bonus payments or other forms of cash incentive compensation (including commissions) to Transferred Employees (and Post-Distribution Baxalta Employees as part of the costs and expenses passed through to Baxalta pursuant to the International Commercial Operations Agreement) in respect of any plan year, the payment date for which occurs on or after the applicable Transferred Employee’s Transfer Date. Notwithstanding the foregoing, the Parties intend to treat the portion of 2015 ending on the Distribution Date as a separate performance period for purposes of 2015 annual bonuses. The bonuses attributable to such separate performance period earned by Transferred Employees shall be paid by Baxalta at substantially the same time such bonuses are paid to Baxter Retained Employees, and to the extent that payment is conditioned upon continued employment, employment by the Baxalta Group shall be treated as employment by the Baxter Group.

Section 6.04 Directors’ Plan . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta Directors’ Plan, with terms and funding arrangements substantially similar to those of the Baxter Directors’ Plan as of the Distribution Date. The Parties shall use commercially reasonable efforts to take all actions necessary or appropriate so that each outstanding Baxter Option or Baxter RSU Award granted under the Baxter Directors’ Plan shall be adjusted or converted as set forth in this Section 6.04 . For the avoidance of doubt, the remainder of this Section 6.04 applies only to grants (including those Baxter RSU Awards deferred pursuant to the Baxter Directors’ DCP) made under the Baxter Directors’ Plan (or any successor or predecessor plan), while Section 6.01 is intended to apply to other programs included within the Baxter Stock Programs.

(a) Baxter Options . As determined by the Baxter Compensation Committee pursuant to its authority under the Baxter Directors’ Plan, each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014) that remains outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into both an Adjusted Baxter Option and a Baxalta Option. As determined by the Baxter Compensation Committee pursuant to its authority under the Baxter Directors’ Plan, each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014) but prior to the Distribution Date that remains outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into (i) an Adjusted Baxter Option in the case of any holder thereof who, as of immediately following the Distribution Date, is not serving on the Baxalta Board or who is serving on both the Baxter Board and the Baxalta Board or (ii) a Baxalta Option in the case of any holder thereof who, as of immediately following the Distribution Date, is serving on the Baxalta Board, but not the Baxter Board. Each such adjusted or converted Option shall, except as otherwise provided in this Section 6.04(a) , be subject to the same terms and conditions (including with respect to vesting) after the Distribution Date as applicable to such Baxter Option immediately prior to the Distribution Date; provided , however , that upon such adjustment or conversion:

(A) with respect to each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014), the number of Baxter Common Shares subject to such Option shall be unchanged from the number of Baxter Common Shares that were subject to the original unadjusted Baxter Option;

 

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(B) with respect to each Baxter Option granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014), the number of shares of Baxalta Common Stock subject to the Baxalta Option into which such Baxter Option is converted, rounded down to the nearest whole share, shall be equal to the product obtained by multiplying (x) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date times (y) the Distribution Ratio;

(C) with respect to each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014) to any holder thereof who, as of immediately following the Distribution Date, is not serving on the Baxalta Board or who is serving on both the Baxter Board and the Baxalta Board, the number of Baxter Common Shares subject to such Adjusted Baxter Option (if any), rounded down to the nearest whole number, shall be equal to (1) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date, divided by (2) the Baxter Percentage;

(D) with respect to each Baxter Option granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014) to any holder thereof who, as of immediately following the Distribution Date, is serving on the Baxalta Board, but not the Baxter Board, the number of shares of Baxalta Common Stock subject to such Baxalta Option (if any), rounded down to the nearest whole number, shall be equal to (1) the product obtained by multiplying (xx) the number of Baxter Common Shares subject to the Baxter Option immediately prior to the Distribution Date times (yy) the Distribution Ratio, divided by (2) the Baxalta Percentage;

(E) the per share exercise price of each Adjusted Baxter Option, rounded up to the nearest hundredth of a cent, shall be equal to (1) the Baxter Pre-Distribution Stock Value minus (2) the Baxter Pre-Distribution Option Value; and

(F) the per share exercise price of each Baxalta Option, rounded up to the nearest hundredth of a cent, shall be equal to (1) the Baxalta Stock Value minus (2) the Baxalta Pre-Distribution Option Value;

provided , however , that the exercise price, the number of Baxter Common Shares and shares of Baxalta Common Stock subject to such options, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Code Section 409A.

 

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(b) Baxter RSU Awards . Each holder of Baxter RSU Awards granted prior to January 1, 2015 (other than new hire grants made on or after July 1, 2014) that remain outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall receive (in addition to retaining such Baxter RSU Awards) concurrently with the Distribution on the Distribution Date a number of Baxalta RSU Awards equal to the product obtained by multiplying (i) the number of such Baxter RSU Awards held by such holder times (ii) the Distribution Ratio. Each Baxter RSU Award granted on or after January 1, 2015 (or, with respect to new hire grants, on or after July 1, 2014) but prior to the Distribution Date that remains outstanding as of immediately prior to the Distribution Date, regardless of by whom held, whether vested or unvested, shall be converted concurrently with the Distribution on the Distribution Date into (i) an Adjusted Baxter RSU Award in the case any holder thereof who, as of immediately following the Distribution Date, is not serving on the Baxalta Board or who is serving on both the Baxter Board and the Baxalta Board or (ii) a Baxalta RSU Award in the case of any holder thereof who, as of immediately following the Distribution Date, is serving on the Baxalta Board, but not the Baxter Board. Except as set forth in this Section 6.04(b) , all Adjusted Baxter RSU Awards and Baxalta RSU Awards issued in accordance with this Section 6.04(b) shall be subject to substantially the same terms and conditions (including with respect to vesting) immediately following the Distribution Date as applicable immediately prior to the Distribution Date for those Baxter RSU Awards from which such Adjusted Baxter RSU Awards and Baxalta RSU Awards were converted; provided , however, that with respect to each Baxter RSU Award converted in accordance with the immediately preceding sentence:

(A) the number of units represented by an Adjusted Baxter RSU Award shall be equal to (1) the number of units subject to the Baxter RSU Award immediately prior to the Distribution Date, divided by (2) the Baxter Percentage;

(B) the number of units represented by a Baxalta RSU Award shall be equal to (1) the product obtained by multiplying (xx) the number of units subject to the Baxter RSU Award immediately prior to the Distribution Date times (yy) the Distribution Ratio, divided by (2) the Baxalta Percentage.

Section 6.05 Directors’ Deferred Compensation Plan .

(a) Establishment of Baxalta Directors’ DCP . Effective as of or before the Distribution Date, Baxalta shall establish the Baxalta Directors’ DCP, with terms substantially similar to those of the Baxter Directors’ DCP as of the Distribution Date. The portion of the compensation paid to a director of Baxalta in the year that includes the Distribution Date that is deferred pursuant to the Baxter Directors’ DCP shall be determined by the deferral election, if any, made by such director for such year pursuant to the Baxter Directors’ DCP.

 

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(b) Assumption of Directors’ DCP Liabilities and Transfer from Baxter Directors’ DCP .

(i) As of the Distribution Date, Baxalta shall, and shall cause the Baxalta Directors’ DCP to, assume all Liabilities for all obligations under the Baxter Directors’ DCP for the benefits of each person who will serve on the Baxalta Board, but not the Baxter Board, as of immediately following the Distribution Date, together with his or her beneficiaries and/or alternate payees, determined as of the applicable Distribution Date, and Baxter and the Baxter Directors’ DCP shall be relieved of all Liabilities for those benefits. To the maximum extent permitted by Treasury Regulations Section 1.409A-1(h)(4), a member of the Baxter Board whose benefit under the Baxter Director’s DCP is transferred to the Baxalta Directors’ DCP shall not be considered to have undergone a “separation from service” for purposes of Code Section 409A and the Baxter Directors’ DCP solely by reason of the Separation, regardless of whether he continues to serve on the Baxter Board immediately following the Distribution Date.

(ii) Baxter shall retain all of the Liabilities under the Baxter Directors’ DCP with respect to the benefits of each person who will serve on both the Baxalta Board and the Baxter Board as of immediately following the Distribution Date, together with his or her beneficiaries and/or alternate payees. The time and form of payment of such Liabilities shall be based upon the date on which such persons terminate their service on the Baxter Board regardless of whether they continue to serve on the Baxalta Board.

(iii) As of or as soon as practicable after the Distribution Date, the Parties shall cooperate to cause the accounts of each person who will serve on the Baxalta Board, but not the Baxter Board, as of immediately following the Distribution Date, participating in the Baxter Directors’ DCP to be transferred to the Baxalta Directors’ DCP. Baxalta shall (A) credit each such director’s account with (1) the amount deferred by such individual into the Baxter Directors’ DCP as of the Distribution Date, plus (2) any employer contributions, whether vested or unvested, deemed to have been made in relation to the amount described in (1), including, in each case, any earnings thereon, and (B) recognize and honor all deferral and distribution elections made by such individual (including any deferral election applicable to any amount earned but not yet paid as of the Distribution Date).

(iv) The accrued benefit of each director under the Baxter Directors’ DCP as of the applicable Transfer Date shall be payable under the Baxalta Directors’ DCP at the same time and in the same form that would have been paid under the Baxter Directors’ DCP, treating such director’s separation from service from the Baxalta Group as if it were a separation from service from the Baxter Group, and taking into account any election made by the director relating to the time and form of his payment under the Baxter Director’s DCP.

(c) Baxter Directors’ DCP after Transfer Date . From and after the Distribution Date, each person who will serve on the Baxalta Board, but not the Baxter Board, as of immediately following the Distribution Date shall not participate in or accrue any benefits under the Baxter Directors’ DCP. Without limiting the generality of the foregoing, each such person shall cease to participate in the Baxter Directors’ DCP effective as of the Distribution Date. The Baxter Directors’ DCP shall continue to be responsible for Liabilities in respect of members of the Baxter Board and their beneficiaries and/or alternate payees.

 

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ARTICLE VII

MISCELLANEOUS

Section 7.01 Transfer of Records and Information . Baxter shall transfer to Baxalta originals or copies of any and all employment records and information (including, but not limited to, any personnel files, performance reviews, and medical, social security and tax files and forms) with respect to Transferred Employees and other records reasonably required by Baxalta to enable Baxalta properly to carry out its obligations under this Agreement. Such transfer of records and information generally shall occur as soon as administratively practicable on or after the Distribution Date (or, if later, the applicable Transfer Date) and shall in each case be required and shall occur only to the extent permitted by applicable local Law; provided that it is understood and agreed that certain records required to effect the contemplated transfer of employment may be provided prior to the Transfer Date to the extent required by applicable local Law. Each Party will permit the other Party reasonable access to Employee records and information, to the extent reasonably necessary for such accessing Party to carry out its obligations hereunder.

Section 7.02 Cooperation . Each Party shall upon reasonable request provide the other Party and the other Party’s respective Affiliates, agents, and vendors all information reasonably necessary to the other Party’s performance of its obligations hereunder. The Parties agree to use their respective best efforts and to cooperate with each other in order to carry out their obligations hereunder and to effectuate the terms of this Agreement.

Section 7.03 Employee Agreements . Effective as of the applicable Transfer Date of each Transferred Employee, Baxter and the applicable members of the Baxter Group hereby assign to Baxalta or another member of the Baxalta Group, to the extent a Transferred Employee did not otherwise sign an Employee Agreement to effect his or her transfer to and hiring by the Baxalta Group, each Employee Agreement entered into between a member of the Baxter Group and any Baxalta Employee, and all rights and obligations thereunder; provided , however, that Baxter and the Baxter Group shall retain all rights under each Employee Agreement to the extent that such rights are related to any continuing Liability of the Baxter Group not assumed by Baxalta in connection with the Separation and Distribution (including herein). Upon written request by Baxter or the Baxter Group, Baxalta or the Baxalta Group shall make available to Baxter or the Baxter Group the original copy of any written Employee Agreement (and a summary of the terms of any unwritten Employee Agreement) that was assigned to Baxalta or the Baxalta Group under this Agreement.

Section 7.04 Repayment Assets . Effective as of the Distribution Date, the Baxter Group shall be entitled to all Employee Recoupment Assets in respect of Baxter Retained Employees and Former Employees, and effective as of the applicable Transfer Date, the Baxalta Group shall be entitled to all Employee Recoupment Assets in respect of Baxalta Employees.

 

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Section 7.05 Compliance . The agreements and covenants of the Parties hereunder shall at all times be subject to the requirements and limitations of applicable Law (including, for purposes of Article IV, local rules and customs relating to the treatment of pension plans) and collective bargaining agreements. Where an agreement or covenant of a Party hereunder cannot be effected in compliance with applicable Law or an applicable collective bargaining agreement, the Parties agree to negotiate in good faith to modify such agreement or covenant to the least extent possible in keeping with the original agreement or covenant in order to comply with applicable Law or such applicable collective bargaining agreement. Each provision of this Agreement is subject to and qualified by this Section 7.05 , whether or not such provision expressly states that it is subject to or limited by applicable Law or by applicable collective bargaining agreements. Each reference to the Code, ERISA, or the Securities Act or any other Law shall be deemed to include the rules, regulations, and guidance issued thereunder.

Section 7.06 Preservation of Rights . Unless expressly provided otherwise in this Agreement, nothing herein shall be construed as a limitation on the right of the Baxter Group or the Baxalta Group to (a) amend, modify or terminate any Benefit Plan or (b) terminate the employment of any Employee.

Section 7.07 Reimbursement . The Parties acknowledge that the Baxter Group, on the one hand, and the Baxalta Group, on the other hand, may incur costs and expenses (including, without limitation, contributions to Benefit Plans and the payment of insurance premiums) which are, as set forth in this Agreement, the responsibility of the other Party. Accordingly, the Parties agree to reimburse each other for Liabilities and obligations for which such Party is responsible, and shall provide such reimbursement reasonably promptly and in accordance with the terms of any agreement between the Parties or their Affiliates expressly addressing such matters.

Section 7.08 Matching Grant Plan . Baxter covenants and agrees that the Baxter International Foundation shall retain all Liabilities under the Matching Gifts Program with respect to donations made by any Transferred Employee prior to the Transfer Date. Baxter covenants and agrees that the Baxter International Foundation is to match or cause to be matched all eligible donations made prior to the Distribution Date, in accordance with the terms of the Matching Gifts Program.

Section 7.09 Not a Change in Control . The Parties acknowledge and agree that the transactions contemplated by the Separation and Distribution Agreement and this Agreement do not constitute a “change in control” or a “change of control” for purposes of any Benefit Plan.

Section 7.10 Incorporation by Reference . The following sections of the Separation and Distribution Agreement are hereby incorporated into this Agreement by reference: Section 9.01. Counterparts, Entire Agreement, Corporate Power, Facsimile Signatures; Section 9.02. Governing Law; Section 9.03. Assignability; Section 9.04. Third Party Beneficiaries; Section 9.05. Notices; Section 9.06. Severability; Section 9.07. Force Majeure; Section 9.08. No Set Off; Section 9.09. Responsibility for Expenses; Section 9.10. Headings; Section 9.11. Survival of Covenants; Section 9.13. Waivers; Section 9.14. Amendments; Section 9.15. Interpretation; Section 9.16. Public Announcements; Section 9.17. Specific Performance; and Section 9.18. Mutual Drafting.

 

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Section 7.11 Limitation on Enforcement . This Agreement is an agreement solely between the Parties. Nothing in this Agreement, whether express or implied, shall be construed to: (a) confer upon any current or former Employee of the Baxter Group or the Baxalta Group, or any other person any rights or remedies, including, but not limited to any right to (i) employment or recall; (ii) continued employment or continued service for any specified period; or (iii) claim any particular compensation, benefit or aggregation of benefits, of any kind or nature; or (b) create, modify, or amend any Benefit Plan.

Section 7.12 Further Assurances and Consents . In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties hereto shall use commercially reasonable efforts to (a) execute and deliver such further instruments and documents and take such other actions as the other party may reasonably request to effectuate the purposes of this Agreement and carry out the terms hereof; (b) take, or cause to be taken, all actions, and do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws and agreements or otherwise to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, using commercially reasonable efforts to obtain any consents and approvals and to make any filings and applications necessary or desirable to consummate the transactions contemplated by this Agreement; provided that no Party shall be obligated to pay any consideration therefor (except for filing fees and other similar charges) to any third party from whom those consents, approvals and amendments are required or to take any action or omit to take any action if the taking of action or the omission to take action would be unreasonably burdensome to the Party or the business thereof.

Section 7.13 Third Party Consent . If the obligation of any Party under this Agreement depends on the consent of a third party, such as a vendor or insurance company, and that consent is withheld, the Parties shall use commercially reasonable efforts to implement the applicable provisions of this Agreement to the fullest extent practicable. If any provision of this Agreement cannot be implemented due to the failure of a third party to consent, the Parties shall negotiate in good faith to implement the provision in a mutually satisfactory manner, taking into account the original purposes of the provision in light of the Distribution and communications to affected individuals.

Section 7.14 Effect if Distribution Does Not Occur . If the Distribution does not occur, then all actions and events that are to be taken under this Agreement, or otherwise in connection with the Distribution, shall not be taken or occur, except to the extent specifically provided by Baxter.

Section 7.15 Disputes . The Parties agree to use commercially reasonable efforts to resolve in an amicable manner any and all controversies, disputes and claims between them arising out of or related in any way to this Agreement. The Parties agree that any controversy, dispute or claim (whether arising in contract, tort or otherwise) arising out of or related in any way to this Agreement that cannot be amicably resolved informally will be resolved pursuant to the dispute resolution procedures set forth in Article VII of the Separation and Distribution Agreement.

Section 7.16 Reverse Jurisdiction . Notwithstanding anything in this Agreement to the contrary, with the exception of Article I , Section 2.01 and this Section 7.16 , the

 

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parties acknowledge and agree that for each of the entities or countries listed in Schedule 7.16 , where the context so requires in accordance with the applicable local Conveyance and Assumption Instruments, each reference to “Baxalta” in this Agreement shall be construed as a reference to “Baxter,” and each reference to “Baxter” in this Agreement shall be construed as a reference to “Baxalta.” For the avoidance of doubt and where such treatment is reasonable in light of the context, this Section 7.16 shall be interpreted to provide substantially the same treatment for the entities or jurisdictions listed in Schedule 7.16 (but with the Baxter and Baxalta roles reversed) to Baxter Retained Employees who are legally employed by the Baxalta Group for a period prior to such Employee’s legal transfer back to the Baxter Group by agreement of the Parties, as the treatment herein with respect to Post-Distribution Baxalta Employees.

[SIGNATURE PAGE FOLLOWS]

 

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The Parties have caused this Agreement to be signed by their authorized representatives as of the date of this Agreement.

 

BAXTER INTERNATIONAL INC.
By:

/s/ James K. Saccaro

James K. Saccaro
Title: Corporate Vice President
BAXALTA INCORPORATED
By:

/s/ Robert J. Hombach

Robert J. Hombach
Title: Corporate Vice President and Chief Financial Officer


Schedule 1.01

Post-Distribution Baxalta Employees

 

Empl ID    Work Country
201120    United Arab Emirates
389152    Argentina
409130    Argentina
364235    Argentina
369271    Argentina
369272    Argentina
410775    Argentina
428032    Argentina
413028    Argentina
392668    Argentina
318369    Argentina
219786    Argentina
235443    Argentina
217040    Argentina
235353    Argentina
388853    Argentina
238797    Argentina
185638    Argentina
355920    Argentina
223330    Argentina
213688    Argentina
415472    Argentina
290095    Bulgaria
228826    Bulgaria
387126    Bulgaria
428850    Brazil
422203    Brazil
389223    Brazil
392861    Brazil
414178    Brazil
394167    Brazil
397959    Brazil
390038    Brazil
389579    Brazil
159361    Brazil
423457    Brazil
363895    Brazil
196674    Brazil
394759    Brazil
305574    Brazil
388951    Brazil
404926    Brazil
236257    Brazil


388132 Brazil
193117 Brazil
422195 Brazil
409496 Brazil
391740 Brazil
210757 Brazil
226225 Brazil
185296 Brazil
410031 Brazil
398603 Brazil
386778 Brazil
388828 Brazil
239326 Brazil
398604 Brazil
395223 Brazil
220979 Brazil
363304 Brazil
416288 Brazil
395874 Brazil
421284 Brazil
218793 Brazil
407419 Brazil
386771 Brazil
415136 Brazil
419197 Brazil
404922 Brazil
150746 Brazil
210784 Brazil
386318 Brazil
414179 Brazil
392059 Brazil
420896 Brazil
387744 Brazil
421553 Brazil
398610 Brazil
416368 Brazil
417561 Brazil
406185 Brazil
422315 Brazil
384525 Brazil
413481 Brazil
418820 Brazil
229002 Brazil
207803 Brazil
364693 Brazil
420267 Brazil
362323 Brazil
218270 Brazil
421730 Brazil
239841 Chile


231429 Chile
398279 Chile
388086 China
188658 China
405203 China
382131 China
397128 China
386751 China
394523 China
360880 China
388841 China
414041 China
390884 China
424992 China
427514 China
394391 China
389442 China
427807 China
359344 China
198967 China
184417 China
390799 China
344224 China
397020 China
344069 China
395355 China
391874 China
394498 China
238538 China
385176 China
364441 China
387220 China
425839 China
410774 China
392139 China
361173 China
428053 China
389497 China
398060 China
422963 China
387321 China
393729 China
237927 China
387296 China
232063 China
231576 China
417608 China
415944 China
364442 China
389416 China


396665 China
428261 China
392308 China
383912 China
394045 China
364834 China
387463 China
419632 China
389921 China
414047 China
364115 China
396447 China
420020 China
427216 China
364199 China
182887 China
394910 China
406124 China
395053 China
238542 China
427574 China
387292 China
420753 China
420751 China
386795 China
204625 China
426791 China
421714 China
388025 China
391225 China
394716 China
419980 China
363450 China
388622 China
415662 China
424754 China
396449 China
387726 China
234685 China
385628 China
383872 China
414856 China
399658 China
207146 China
389411 China
382461 China
362619 China
189034 China
406813 China
344304 China


428252 China
228985 China
394246 China
218997 China
364238 China
195159 China
384292 China
417301 China
207761 China
382738 China
408660 China
362198 China
229591 China
423994 China
345016 China
425837 China
362439 China
422046 China
234372 China
417602 China
418798 China
389336 China
390942 China
384180 China
218127 China
389153 China
398831 China
426021 China
396199 China
423992 China
383778 China
198263 China
154558 Costa Rica
388856 Costa Rica
396294 Costa Rica
392608 Czech Republic
395326 Czech Republic
414983 Czech Republic
425991 Czech Republic
427578 Czech Republic
397559 Czech Republic
383917 Czech Republic
111720 Czech Republic
235376 Czech Republic
110804 Czech Republic
418367 Czech Republic
196641 Czech Republic
306777 Czech Republic
239711 Czech Republic
389980 Czech Republic


363747 Czech Republic
232011 Czech Republic
203533 Czech Republic
111378 Czech Republic
132641 Czech Republic
111084 Czech Republic
132165 Czech Republic
148048 Czech Republic
113735 Czech Republic
221468 Czech Republic
213534 Czech Republic
110913 Czech Republic
220753 Czech Republic
140344 Czech Republic
159351 Czech Republic
126414 Czech Republic
110805 Czech Republic
206541 Czech Republic
217392 Czech Republic
183779 Czech Republic
140388 Czech Republic
111829 Czech Republic
223311 Czech Republic
151203 Czech Republic
232549 Czech Republic
199245 Czech Republic
201095 Czech Republic
186664 Czech Republic
111293 Czech Republic
111212 Czech Republic
131517 Czech Republic
132178 Czech Republic
207839 Czech Republic
131495 Czech Republic
147697 Czech Republic
234379 Czech Republic
128222 Czech Republic
390221 Ecuador
359192 Ecuador
388053 Ecuador
156439 Ecuador
349801 Ecuador
239727 Estonia
357059 Greece
156102 Greece
355880 Greece
315220 Greece
397654 Greece
355884 Greece
356729 Greece


427733 Greece
355881 Greece
352385 Greece
353816 Greece
181475 Greece
103739 Greece
217119 Greece
289971 Greece
407538 Guatemala
383344 Guatemala
424861 Guatemala
218654 Guatemala
189929 Hungary
398488 Hungary
231608 Hungary
226752 Hungary
159795 Hungary
384380 Hungary
289986 Hungary
394549 India
411467 India
385387 India
413524 India
416806 India
167047 India
182428 India
427972 India
411013 India
361631 India
364309 India
413809 India
426669 India
385098 India
399331 India
406600 India
410778 India
392208 India
399948 India
305879 India
167475 India
426371 India
398447 India
411945 India
427500 India
306167 India
228143 India
407926 India
412570 India
195467 India
412007 India


182723 India
421562 India
222233 India
229014 India
398929 India
408167 India
424875 India
427132 India
351742 India
177877 India
386762 India
386611 India
417348 India
384277 India
208968 India
411424 India
415013 India
391875 India
360849 India
406487 India
394678 India
410777 India
411470 India
391756 India
195236 India
406541 India
405992 India
381741 India
361129 India
395020 India
425951 India
405658 India
426367 India
423609 India
399570 India
361931 India
411329 India
382657 India
405496 India
364196 India
388448 India
411549 Kazakhstan
409972 Kazakhstan
418080 Kazakhstan
390192 Kazakhstan
301943 Kazakhstan
359570 Kazakhstan
398835 Kazakhstan
416206 Kazakhstan
427491 Kazakhstan


412800 Kazakhstan
426909 Kazakhstan
412988 Kazakhstan
239851 Lithuania
239850 Lithuania
159075 Latvia
419765 Latvia
414787 Malaysia
216934 Malaysia
229014 Malaysia
394814 Malaysia
387440 Panama
160405 Poland
384163 Poland
356743 Poland
238593 Poland
382940 Poland
364298 Poland
222762 Poland
290202 Poland
412687 Poland
385790 Poland
212532 Poland
180877 Poland
234344 Poland
290204 Poland
306465 Poland
364296 Poland
235061 Poland
218883 Poland
218888 Poland
385154 Poland
411703 Poland
407930 Poland
392629 Poland
235060 Poland
399477 Poland
290148 Poland
238726 Poland
413991 Poland
200852 Poland
206401 Poland
426434 Poland
384412 Poland
225433 Poland
234705 Poland
217092 Poland
215598 Poland
200029 Poland
426056 Poland


410410 Romania
410677 Romania
410738 Romania
410737 Romania
411725 Romania
406099 Romania
407893 Romania
228861 Russia
413557 Russia
423494 Russia
361116 Russia
290236 Russia
395510 Russia
420082 Russia
406951 Russia
414912 Russia
413555 Russia
392403 Russia
238315 Russia
428731 Russia
397359 Russia
226893 Russia
423682 Russia
229683 Russia
412971 Russia
419156 Russia
399066 Russia
414035 Russia
412852 Russia
384566 Russia
236651 Russia
405488 Russia
239335 Russia
362104 Russia
397088 Russia
290262 Russia
414652 Russia
397823 Russia
411056 Russia
157971 Russia
427007 Russia
411623 Russia
384917 Russia
399798 Russia
406346 Russia
357088 Russia
393703 Russia
406945 Russia
416405 Russia
410726 Russia


389561 Russia
238222 Russia
382215 Russia
405317 Russia
414911 Russia
417773 Russia
392406 Russia
426359 Russia
416309 Russia
414033 Russia
237128 Russia
421414 Russia
415906 Slovakia
427343 Slovakia
387197 Slovakia
427878 Slovakia
388024 Slovakia
427742 Slovakia
408263 Slovakia
214012 Slovakia
425332 Slovakia
219614 Slovakia
110804 Slovakia
385458 Slovakia
364217 Slovakia
359110 Slovakia
362593 Slovakia
395747 Slovakia
407587 Slovenia
413451 Slovenia
412141 Slovenia
237045 Thailand
235531 Thailand
411709 Thailand
236362 Thailand
417445 Thailand
418034 Thailand
395843 Thailand
406913 Thailand
393318 Thailand
395877 Thailand
385368 Thailand
410161 Thailand
366863 Taiwan
422110 Taiwan
350893 Taiwan
395695 Taiwan
411801 Taiwan
409133 Taiwan
234395 Taiwan


392153 Taiwan
427413 Ukraine
416021 Ukraine
427870 Ukraine
204472 Venezuela
384506 Vietnam
389007 Vietnam
393041 Vietnam
427148 Vietnam

 

* Parties may agree from time to time to designate other employees not yet transferred as of the Distribution Date to the list of Post-Distribution Baxalta Employees; provided that, for the avoidance of doubt, any such employee shall (unless the parties expressly agree otherwise) shall be treated as a Baxter employee as of the Distribution Date for purposes of all equity award adjustments and conversions in the manner described in the Employee Matters Agreement.


Schedule 2.03(a)

Baxter Benefit Plans

 

 

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Schedule 4.01(a) / 4.02(a)(ii)

Baxalta Non-U.S. Plans – Former Employees

 

  1. Austria Baxter AG Retirement Plan

 

  2. Austria Innovations GmbH Retirement Plan

 

  3. Switzerland Baxter Bioscience

 

  4. Switzerland Baxter AG

 

  5. Switzerland Baxter Healthcare

Mutual Agreement Re: Asset Transfer Methodology

The Parties mutually agree, as contemplated by the following provisions of Section 4.01(a) and Section 4.02(a)(ii) of the Agreement, for the avoidance of doubt, that where applicable local Laws specify the method for valuation, the applicable local Laws will be followed (but interpreted as closely as possible to the language of the Agreement to the extent such an interpretation is permitted).

Applicable Excerpt – Section 4.01(a)

Assets will be allocated between the plans based on the proportion of Liabilities borne by each plan. Except as otherwise mutually agreed upon by the Parties, such Liabilities will be valued using the projected benefit obligation based on plan provisions as in effect at the Applicable Closing Date and applying demographic and other assumptions used in the most recently completed valuation of the applicable Non-U.S. Baxter Benefit Plan (and taking into account the requirements of ASC 715 as it exists as of the Applicable Closing Date); provided , however , that all economic assumptions will be updated as of the Applicable Closing Date.

Applicable Excerpt – Section 4.02(a)(ii)

Assets will be allocated between the plans based on the proportion of Liabilities borne by each plan. Except as otherwise mutually agreed upon by the Parties, such Liabilities will be valued as of the Shared Plan Replacement Date using the projected unit credit method based on plan provisions as in effect at the Shared Plan Replacement Date and applying the demographic and other assumptions used in the most recently completed valuation of the applicable Non-U.S. Baxter Benefit Plan (and taking into account the requirements of ASC 715 as it exists as of the Shared Plan Replacement Date); provided , however , that all economic assumptions will be updated as of the Shared Plan Replacement Date.


Schedule 4.02(a)

Continued Baxalta Participation in Baxter Non-U.S. Plans

 

  1. Switzerland (*) – Baxter and Baxalta employees will continue to participate in the existing Baxter Swiss pension foundation until on or about January 1, 2016. On or about January 1, 2016, the existing Baxter Swiss pension foundation will transfer to Baxalta and active Baxter employees as of such date will transfer out of the current Swiss pension foundation into a newly established Baxter Swiss pension foundation or a separate multi-employer foundation.

 

  2. Japan

 

    Assets for defined benefit pension plan will be combined until government approval by MHLW


Schedule 5.01(c)(iii)

Flexible Spending Accounts

 

    Canada

 

    Spending credits will not transfer to Baxalta

 

    Participants have been advised that Flex credits need to be used by June 30 th and they have 90 days post June 30 th to process claims through Baxter.


Schedule 6.01(e)

Equity Adjustment Exceptions

 

  1. Certain re-hire grants made after July 1, 2014 will be subject to the “basket” approach described in Section 6.01(a) such that those awards (as determined in agreement with the applicable employee) are treated in the same manner as 2014 awards that were not new hire grants.


Schedule 7.16

Reverse Jurisdictions

 

  1. Austria Baxter AG Retirement Plan

 

  2. Austria Innovations GmbH Retirement Plan

 

  3. Switzerland Baxter Bioscience

 

  4. Switzerland Baxter AG

 

  5. Switzerland Baxter Healthcare

Exhibit 10.2

Execution Version

TAX MATTERS AGREEMENT

by and among

BAXTER INTERNATIONAL INC.

AND ITS AFFILIATES

and

BAXALTA INCORPORATED

AND ITS AFFILIATES


TAX MATTERS AGREEMENT

This Tax Matters Agreement (the “ Agreement ”) is entered into as of the 30th day of June, 2015, between Baxter International Inc. (“ Baxter ”), a Delaware corporation, by and on behalf of itself and each Affiliate of Baxter, and Baxalta Incorporated (“ Baxalta ” and, together with Baxter, the “ Parties ”), a Delaware corporation, by and on behalf of itself and each Affiliate of Baxalta.

R E C I T A L S:

WHEREAS, Baxter’s board of directors has determined that it is appropriate and advisable to: (i) separate the Baxalta Business from Baxter’s remaining businesses (the “ Separation ”), which will include the transfer of the assets (including interests in intangible assets and stock of subsidiaries) used in connection with the Baxalta Business to Baxalta (the “ Contribution ”); and (ii) following the Separation, make a distribution, on a pro rata basis, to holders of common shares, par value $1.00 per share (“ Baxter Common Stock ”), of Baxter of at least 80% of the outstanding shares of common stock, par value $0.01 per share, of Baxalta owned by Baxter (the “ Distribution ” together with the Separation, Subsequent Distributions and Debt-for-Equity Exchanges, the “ Transactions ”) (the date of such Distribution, the “ Distribution Date ”);

WHEREAS, Baxter may retain up to 20% of the outstanding Baxalta Common Stock (“ Retained Stock ”) and distribute such Retained Stock to Baxter shareholders (“ Subsequent Distributions ”) or Baxter creditors (“ Debt-for-Equity Exchanges ”) within 18 months of the Distribution;

WHEREAS, Baxter and Baxalta intend that the Contribution and Distribution, Subsequent Distributions, Debt-for-Equity Exchanges and certain other transactions effected as part of the Separation qualify for Tax-Free Status;

WHEREAS, as of the date hereof, Baxter is the common parent of an affiliated group of domestic corporations, including Baxalta, that has elected to file consolidated U.S. federal Income Tax Returns and, as a result of the Distribution, neither Baxalta nor any of its Affiliates will be a member of such group after the close of the Distribution Date; and

WHEREAS, in contemplation of the Distribution, Baxter and Baxalta desire to set forth their agreement on the rights and obligations of Baxter and Baxalta and their respective Affiliates with respect to the responsibility, handling and allocation of federal, state, local, and non-U.S. Taxes, and various other Tax matters;


NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, Baxter and Baxalta (and their respective Affiliates) hereby covenant and agree as follows:

ARTICLE I

DEFINITIONS

For purposes of this Agreement (including the recitals hereof), the following terms have the following meaning, and capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings assigned to them in the Distribution Agreement.

Active Trade or Business ” means the active conduct (as defined in Section 355(b)(2) of the Code and the regulations thereunder) by Baxalta and its “separate affiliated group” (as defined in Section 355(b)(3)(B) of the Code) and any Affiliate of Baxalta that is a party to a transaction intended to qualify under Section 355 of the Code and such Affiliate’s “separate affiliated group” of the Baxalta Business, in each case, as conducted immediately prior to the Distribution or any other relevant distribution.

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

Affiliate ” means any corporation, partnership, limited liability company, or other entity directly or indirectly Controlled by the entity in question.

Agreement ” has the meaning set forth in the Preamble.

Baxalta ” has the meaning set forth in the Preamble.

Baxalta Business ” has the meaning set forth in the Distribution Agreement.

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

Baxalta Group ” means Baxalta and all Affiliates of Baxalta, as determined immediately after the Distribution.

Baxalta Liability Percentage ” means the quotient, expressed as a percentage and rounded to two (2) decimal points, of (i) the Baxalta Market Capitalization, divided by (ii) the sum of the Baxter Market Capitalization plus the Baxalta Market Capitalization.

Baxalta Market Capitalization ” means the product of (i) the volume-weighted average trading price per share of Baxalta Common Stock for the twenty (20) consecutive trading days beginning on and following the first trading day following the Distribution Date, as quoted by Bloomberg Financial Services through its “Volume at Price” function, rounded to the nearest whole cent, multiplied by (ii) the arithmetic average of the number of Baxalta Common Shares outstanding, on a fully-diluted basis, on each of such twenty (20) trading days, rounded to two (2) decimal points.

 

3


Baxalta Separate Return ” means any Tax Return of or including any member of the Baxalta Group (including any consolidated, combined or unitary return) that is not a Joint Return.

Baxter ” has the meaning set forth in the Preamble.

Baxter Affiliated Group ” means the affiliated group (as that term is defined in Section 1504 of the Code and the regulations thereunder) of which Baxter is the common parent.

Baxter Business ” has the meaning set forth in the Distribution Agreement.

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

Baxter Common Stock ” has the meaning set forth in the Recitals.

Baxter Federal Consolidated Income Tax Return ” means any United States federal Income Tax Return for the Baxter Affiliated Group.

Baxter Group ” means Baxter and all Affiliates of Baxter, excluding any entity that is a member of the Baxalta Group.

Baxter Liability Percentage ” means the difference, expressed as a percentage, of (i) one hundred percent (100%) minus (ii) the Baxalta Liability Percentage.

Baxter Market Capitalization ” means the product of (i) the volume-weighted average trading price per share of Baxter Common Stock for the twenty (20) consecutive trading days beginning on and following the first trading day following the Distribution Date, as quoted by Bloomberg Financial Services through its “Volume at Price” function, rounded to the nearest whole cent, multiplied by (ii) the arithmetic average of the number of Baxter Common Shares outstanding, on a fully-diluted basis, on each of such twenty (20) trading days, rounded to two (2) decimal points.

Baxter Separate Return ” means any Tax Return of or including any member of the Baxter Group (including any consolidated, combined or unitary return) that is not a Joint Return.

Board Certificate ” has the meaning set forth in Section 4.02(d) of this Agreement.

Business ” means the Baxter Business or Baxalta Business, as the case may be.

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

Contribution ” has the meaning set forth in the Recitals.

 

4


Control ” means the ownership of stock or other securities possessing at least 50 percent of the total combined voting power of all classes of securities entitled to vote.

Debt-for-Equity Exchange ” has the meaning set forth in the Recitals.

Deferred Baxalta Business ” has the meaning set forth in the ICO Agreement.

Distribution ” has the meaning set forth in the Recitals.

Distribution Agreement ” means the Separation and Distribution Agreement entered into by and between Baxter and Baxalta on the date hereof, as the same may be amended.

Distribution Date ” has the meaning set forth in the Recitals.

Employee Matters Agreement ” means the Employee Matters Agreement entered into by and between Baxter and Baxalta on the date hereof, as the same may be amended.

Employment Taxes ” means any Tax the liability or responsibility for is allocated pursuant to the Employee Matters Agreement.

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

Final Determination ” means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period, (a) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a state, local, or non-U.S. taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such taxable period (as the case may be); (b) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (c) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or non-U.S. taxing jurisdiction; (d) by any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (e) by a final settlement resulting from a treaty-based competent authority determination; or (f) by any other final disposition, including by reason of the expiration of the applicable statute of limitations or by mutual agreement of the parties.

ICO Agreement ” means the International Commercial Operations Agreement, as defined in the Distribution Agreement.

Income Tax ” means any Tax which is based upon, measured by, or calculated with respect to income or net worth, including, without limitation, the Michigan “single business tax” set forth at MCL sections 208.1 to 208.145, the Ohio “Commercial Activity Tax” set forth in Ohio Rev. Code Ann. §§ 5751.01 through 5751.99, the Texas “franchise tax” set forth in Title 2,

 

5


Subtitle F, Chapter 171 of the Texas Tax Code Annotated, the California “franchise tax” set forth in Cal. Rev. & Tax Code § 23151, the “Business Privilege Tax” set forth in Tennessee Code section 67-4-709, and any other franchise or similar Taxes.

Income Tax Return ” means any Tax Return relating to Income Taxes.

Indemnifying Party ” means a Party that has an obligation to make an Indemnity Payment.

Indemnitee ” means a Party that is entitled to receive an Indemnity Payment.

Indemnity Payment ” means an indemnity payment contemplated by the Distribution Agreement, this Agreement or any other Ancillary Agreement.

IRS ” means the United States Internal Revenue Service.

IRS Ruling ” means the private letter ruling issued by the IRS to Baxter (or any other member of the Baxter Group) in connection with the Transactions (including any supplemental rulings).

Joint Return ” means (i) any Tax Return that actually includes, by election or otherwise, one or more members of the Baxter Group together with one or more members of the Baxalta Group or (ii) any Tax Return that includes Tax Items attributable to both the Baxalta Business and the Baxter Business.

MDET ” means the Medical Device Excise Tax as defined in Section 4191 of the Code and any Treasury Regulations promulgated thereunder.

Non-Income Tax ” means any Tax that is not an Income Tax or a Property Tax.

Notified Action ” has the meaning set forth in Section 4.04(a) .

Other Tax Ruling ” means each ruling (other than the IRS Ruling) issued by a Tax Authority pursuant to a ruling request filed by or on behalf of the Baxter Group with respect to the Transactions (including any supplemental rulings).

Parties ” has the meaning set forth in the Preamble.

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof, without regard to whether any entity is treated as disregarded for U.S. federal income tax purposes.

Pharma Fee ” means the “Branded Prescription Drug Fee” as defined in the Treasury Regulations Section 51.1, et seq.

 

6


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

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

Property Tax ” means any real, personal and intangible ad valorem property Tax imposed by any Tax Authority, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing.

Proposed Acquisition Transaction ” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by Baxalta management or shareholders, is a hostile acquisition, or otherwise, as a result of which Baxalta would merge or consolidate with any other Person or as a result of which one or more Persons would (directly or indirectly) acquire, or have the right to acquire, from Baxalta and/or one or more holders of outstanding shares of Baxalta Capital Stock, a number of shares of Baxalta Capital Stock that would, when combined with any other changes in ownership of Baxalta Capital Stock pertinent for purposes of Section 355(e) of the Code, comprise 40% or more of (a) the value of all outstanding shares of stock of Baxalta as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (b) the total combined voting power of all outstanding shares of voting stock of Baxalta as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (x) the adoption by Baxalta of a shareholder rights plan or (y) issuances by Baxalta that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d). For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power shall be treated as an acquisition of stock by the shareholder whose voting power increases and any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation.

Refund Recipient ” has the meaning set forth in Section 2.08(a) .

Representation Letters ” means the representation letters and any other materials (including, without limitation, a Ruling Request and any related supplemental submissions to the IRS) delivered or deliverable by Baxter and others in connection with the rendering by KPMG LLP or any other Tax Advisor, and/or the issuance by the IRS or any other Tax Authority, of the Tax Opinions/Rulings.

 

7


Retained Stock ” has the meaning set forth in the Recitals.

Ruling Request ” means any letter filed by Baxter with the IRS or any other Tax Authority requesting a ruling (including the IRS Ruling and Other Rulings) regarding certain Tax consequences of the Transactions (including all attachments, exhibits, and other materials submitted with such ruling request letter) and any amendment or supplement to such ruling request letter.

Rulings ” means, collectively, the IRS Ruling and the Other Tax Rulings and “ Ruling ” means any one of them.

Section 4.02(d) Acquisition Transaction ” means any transaction or series of transactions that is not a Proposed Acquisition Transaction but would be a Proposed Acquisition Transaction if the percentage reflected in the definition of Proposed Acquisition Transaction were 30% instead of 40%.

Separate Return ” means a Baxter Separate Return or a Baxalta Separate Return, as the case may be.

Separation ” has the meaning set forth in the Recitals.

Separation Taxes ” means any Taxes (including, for the avoidance of doubt, Income Taxes and Transfer Taxes) imposed on any member of the Baxter Group or Baxalta Group arising from, or attributable to, any transfer of assets or liabilities in the Separation that are incurred on or prior to the Distribution, but that are not and do not give rise to Tax-Related Losses.

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

Subsequent Distributions ” has the meaning set forth in the Recitals.

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

Tax Advisor ” means, with respect to U.S. Tax matters, a U.S. Tax counsel or accountant of recognized national standing, and, with respect to non-U.S. Tax Matters, a local Tax counsel or accountant of recognized national standing in the relevant jurisdiction.

Tax Attribute ” means a net operating loss, net capital loss, overall foreign loss, unused investment credit, unused foreign tax credit, excess charitable contribution, general business credit, research and development credit or any other Tax Item that could reduce a Tax or create a Tax benefit.

 

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Tax Authority ” means, with respect to any Tax, the governmental authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.

Tax Benefit ” means, with respect to a Tax Period, the amount by which the cash Tax liability of an entity (or of the consolidated or combined group of which it is a member) is reduced solely as a result of a Tax Item, or the amount of an actual Tax refund that is generated solely as a result of such Tax Item (plus any related interest received from any Tax Authority), in either case, by comparing the cash Tax liability or actual Tax refund on the applicable Tax Return that would arise with and without the Tax Item potentially giving rise to the Tax Benefit.

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

Tax-Free Status ” means the treatment of the Transactions and any other transaction described in the Tax Opinions/Rulings, in accordance with the treatment set forth therein.

Tax Incentive ” means any Tax exemption, Tax holiday, Tax incentive, preferential Tax treatment, Tax deferral, Tax credit, or other Tax reduction agreement relating to the Baxter Group or the Baxalta Group.

Tax Item ” means any item of income, gain, loss, deduction, credit, recapture of credit, or any other item (including the basis or adjusted basis of property) which increases or decreases Taxes paid or payable in any taxable period.

Tax Law ” means the law of any governmental entity or political subdivision thereof relating to any Tax.

Tax Opinions ” means (i) the written opinion on the U.S. federal income taxation consequences of certain aspects of the Transactions provided by KPMG LLP to any member of the Baxter Group or the Baxalta Group and (ii) any other written opinions on the U.S. state, local, and non-U.S. tax consequences of certain aspects of the Transactions provided by any Tax Advisors to any member of the Baxter Group or Baxalta Group, in either case, requested prior to the Distribution.

Tax Opinions/Rulings ” means the Tax Opinions and/or the Rulings deliverable to any member of the Baxter Group in connection with the Transactions.

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

Tax-Related Losses ” means (a) all Taxes (including interest and penalties thereon) imposed pursuant to any settlement, Final Determination, judgment or otherwise; (b) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes; and (c) all costs, expenses and damages associated with stockholder litigation or controversies and any amount paid by Baxter (or any Baxter Affiliate) or Baxalta (or any Baxalta Affiliate) in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Tax Authority, in each case, resulting from the failure of the Transactions to have Tax-Free Status.

 

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Tax Return ” means any report of Tax due, any claims for refund of Tax paid, any information return with respect to Tax, any election made with respect to Tax, or any other similar report, statement, declaration, or document required to be filed under the Code or other Law with respect to Tax, including any attachments, exhibits, or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing for any taxpayer or consolidated, combined, or unitary group of taxpayers.

Tax Return Preparer ” means (i) with respect to any Tax Return that Baxter is responsible for preparing under Section 3.01(a) , Baxter, and (ii) with respect to any Tax Return that Baxalta is responsible for preparing under Section 3.01(b) , Baxalta.

Transaction ” has the meaning set forth in the Recitals.

Transaction Tax Contest ” means a Tax Contest with the purpose of effect of determining or redetermining Taxes that could give rise to Tax-Related Losses.

Transfer Taxes ” means all transfer, sales, use, excise, stock, stamp, stamp duty, stamp duty reserve, stamp duty land, documentary, filing, recording, registration, value-added and other similar Taxes (excluding, for the avoidance of doubt, any income, gains, profit or similar Taxes, however assessed).

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

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

 

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ARTICLE II

RESPONSIBILITY FOR TAX

Section 2.01 General Rule .

(a) Baxter Liability . Baxter shall be liable for, and shall indemnify and hold harmless the Baxalta Group from and against any liability for, Taxes which are allocated to Baxter under this Article II .

(b) Baxalta Liability . Baxalta shall be liable for, and shall indemnify and hold harmless the Baxter Group from and against any liability for, Taxes which are allocated to Baxalta under this Article II .

Section 2.02 Income Taxes . Except as provided in Section 2.05 , all Income Taxes of the Baxter Group and Baxalta Group shall be allocated as follows:

(a) Current Income Taxes .

(i) Joint Returns . Subject to Section 2.02(a)(iv) and Section 2.02(b) , Baxter shall be responsible for any and all Income Taxes (including estimated Income Taxes) shown as due and owing on any originally filed Joint Return for any Tax Period beginning on or before the Distribution Date (including any originally filed Joint Return for a Straddle Period).

(ii) Baxter Separate Returns . Subject to Section  2.02(a)(iv) and Section 2.02(b) , Baxter shall be responsible for any and all Income Taxes (including estimated Income Taxes) shown as due and owing on any originally filed Baxter Separate Return for any Tax Period beginning on or before the Distribution Date (including any originally filed Baxter Separate Return for a Straddle Period).

(iii) Baxalta Separate Returns . Subject to Section 2.02(a)(iv) and Section 2.02(b) , Baxalta shall be responsible for any and all Income Taxes (including estimated Income Taxes) shown as due and owing on any originally filed Baxalta Separate Return for any Tax Period beginning on or before the Distribution Date (including any originally filed Baxalta Separate Return for a Straddle Period).

(iv) Certain Payments for Pre-Distribution Tax Periods . If any originally filed Income Tax Return of the Baxter Group or Baxalta Group for any Tax Period beginning on or before the Distribution Date shows a payment of Income Taxes exceeding the amount set forth on Exhibit A , then (A) Baxter shall be responsible for such payment to the extent attributable to the Baxter Business and (B) Baxalta shall be responsible for such payment to the extent attributable to the Baxalta Business, in each case, as determined pursuant to Section 2.06 .

(b) Pre-Distribution Income Taxes due to Amended Tax Returns or Adjustments . If either the Baxter Group or the Baxalta Group becomes liable for any Income Taxes for a Pre-Distribution Tax Period as a result of either an amended Tax Return (including

 

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any amended Joint Return or amended Separate Return) or a Final Determination or other adjustment made by a Tax Authority, then: (A) Baxter shall be responsible for any and all such Income Taxes to the extent attributable to the Baxter Business, and (B) Baxalta shall be responsible for any and all such Income Taxes to the extent attributable to the Baxalta Business, in each case, as determined pursuant to Section 2.06 .

(c) Post-Distribution Income Taxes . Baxter shall be responsible for any and all Income Taxes imposed on the Baxter Group for any Tax Period beginning after the Distribution Date (whether or not such Income Taxes are due and owing on any originally filed or amended Income Tax Return or as a result of any Final Determination or other adjustment made by a Tax Authority). Baxalta shall be responsible for any and all Income Taxes imposed on the Baxalta Group for any Tax Period beginning after the Distribution Date (whether or not such Income Taxes are due and owing on any originally filed or amended Income Tax Return or as a result of any Final Determination or other adjustment made by a Tax Authority).

Section 2.03 Non-Income Taxes . Except as provided in Section 2.05 , all Non-Income Taxes of the Baxter Group and Baxalta Group shall be allocated as follows:

(a) Pre-Distribution Non-Income Taxes . For all Pre-Distribution Tax Periods, (A) Baxter shall be responsible for any and all Non-Income Taxes that are attributable to the Baxter Business and (B) Baxalta shall be responsible for any and all Non-Income Taxes that are attributable to the Baxalta Business, in each case, as determined pursuant to Section 2.06 .

(b) Post-Distribution Non-Income Taxes . For all Post-Distribution Tax Periods, (i) Baxter shall be responsible for any and all Non-Income Taxes imposed on the Baxter Group and (ii) Baxalta shall be responsible for any and all Non-Income Taxes imposed on the Baxalta Group.

(c) MDET . Notwithstanding Section 2.03(a) and Section 2.03(b) , Baxter shall be responsible for any and all MDET imposed on the Baxter Group or the Baxalta Group for all Pre-Distribution Tax Periods; provided , that, Baxalta shall be responsible for any portion of the MDET imposed on the Baxter Group or the Baxalta Group for any Pre-Distribution Tax Period that meets both of the following requirements: (i) such MDET is attributable to the Baxalta Business (or is otherwise imposed with respect to a Baxalta asset or product code) and (ii) the aggregate amount of such MDET referred to in clause (i) with respect to such Tax Period exceeds the amount set forth on Exhibit A .

(d) Pharma Fee . Notwithstanding Section 2.03(a) and Section 2.03(b) , for all Tax Periods, (i) Baxter shall be responsible for any Pharma Fee imposed on the Baxter Group and (ii) Baxalta shall be responsible for any Pharma Fee imposed on the Baxalta Group; provided , however , that Baxalta shall be responsible for any Pharma Fee imposed on the Baxter Group for any Tax Period that is attributable to the Baxalta Business or otherwise results from assets, intellectual property, or other products owned by the Baxalta Group immediately after the Distribution.

 

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Section 2.04 Property Taxes .

(a) Baxter shall be responsible for any and all Property Taxes imposed (whether in respect of a period, or a time, before or after the Distribution), attributable to, or arising with respect to or as a result of, assets or activities of the Baxter Business, as determined pursuant to Section 2.06 .

(b) Baxalta shall be responsible for any and all Property Taxes imposed (whether in respect of a period, or a time, before or after the Distribution), attributable to, or arising with respect to or as a result of, assets or activities of the Baxalta Business, as determined pursuant to Section 2.06 .

Section 2.05 Certain Transaction Taxes and Breaches of Covenants .

(a) The Parties acknowledge and agree that this Agreement, including Article II , shall not apply with respect to (i) any and all Taxes attributable to the ownership, operation or transfer of any Deferred Baxalta Business, for which the ICO Agreement shall govern, and (ii) any and all Employment Taxes, for which the Employee Matters Agreement shall govern.

(b) Any Separation Taxes payable after the Distribution Date shall be allocated (i) to Baxter in an amount equal to such Separation Taxes multiplied by the Baxter Liability Percentage and (ii) to Baxalta in an amount equal to such Separation Taxes multiplied by the Baxalta Liability Percentage.

(c) Baxalta shall be responsible for (i) any and all Tax-Related Losses for which Baxalta is responsible pursuant to Section 4.05 of this Agreement and (ii) any and all Taxes resulting from a breach by any member of the Baxalta Group of any covenant in this Agreement.

(d) Baxter shall be responsible for (i) any and all Tax-Related Losses for which Baxter is responsible pursuant to Section 4.05 of this Agreement and (ii) any and all Taxes resulting from a breach by any member of the Baxter Group of any covenant in this Agreement.

Section 2.06 Determination of Tax Attributable to Baxter Business and Baxalta Business.

(a) For purposes of this Article II , the amount of Taxes attributable to either the Baxter Business or Baxalta Business for any Pre-Distribution Tax Period shall be determined by Baxter in a manner consistent with the past return filing practices of the Baxter Group with respect to the relevant Tax Return (including any past accounting methods, elections and conventions); provided that Baxalta shall be entitled to participate in such determination.

(b) Without limiting the generality of Section 2.06(a) , the Parties agree that the following rules and principles shall apply for purposes of determining the amount of Tax attributable to a Business pursuant to Section 2.06(a) :

(i) In the event a Tax Item is not specifically attributable to either the Baxter Business or the Baxalta Business, such Tax Item shall be allocated (i) to the Baxter Business in an amount equal to such Tax Item multiplied by the Baxter Liability Percentage and (ii) to the Baxalta Business in an amount equal to such Tax Item multiplied by the Baxalta Liability Percentage.

 

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(ii) In the event a Non-Income Tax or Property Tax is attributable or traceable to a specific asset or product code (such as the MDET or the Pharma Fee), then such Tax shall be attributable to the Business that owns the relevant asset or product code.

(iii) With respect to any item of real property that is shared between the Businesses, any Property Taxes imposed on such real property (whether in respect of a period, or a time, before or after the Distribution) shall be allocated between the Businesses based on headcount used in the relevant facility during the applicable Tax Period, if feasible, and using any other reasonable methodology as the Parties may agree (such as square footage used by each Business during the applicable Tax Period), if use of headcount is not feasible.

(iv) In determining the amount of Taxes attributable to either the Baxter Business or Baxalta Business for any Pre-Distribution Tax Period, the Parties shall include the results from operations arising from the Baxter Business and the Baxalta Business (or assets relating thereto) during such Tax Period without regard to whether such operations (or assets) were operated or owned by a member of the Baxter Group or Baxalta Group.

Section 2.07 Proration of Taxes for Straddle Periods .

(a) For U.S. federal income Tax purposes, the Tax Period of each member of the Baxalta Group that joined in the filing of the Baxter Federal Consolidated Income Tax Return will close as of the end of the Distribution Date. Baxter and Baxalta shall take all commercially reasonable actions necessary or appropriate to close the taxable year of each member of the Baxalta Group for all other U.S. Tax purposes as of the end of the Distribution Date to the extent permitted by applicable Law; provided that this Section 2.07(a) shall not be construed to require Baxter to change any of its Tax Periods.

(b) For any Straddle Period, Taxes for the Pre-Distribution Tax Period shall be computed (i) in the case of Taxes imposed on a periodic basis (such as Property Taxes), on a daily pro rata basis and (ii) in the case of other Taxes generally, as if the Tax Period ended as of the close of business on the Distribution Date and, in the case of any such other Taxes that are attributable to the ownership of any equity interest in a partnership, other “flowthrough” entity or “controlled foreign corporation” (within the meaning of Section 957(a) of the Code or any comparable U.S. state or local or non-U.S. Tax Law), as if the Tax Period of that entity ended as of the close of business on the Distribution Date (whether or not such Taxes arise in a Straddle Period of the applicable owner).

Section 2.08 Tax Refunds .

(a) Subject to Section 2.08(b) , and except as provided in Section 2.09 , if Baxter, Baxalta or any of their respective Affiliates receives any refund of any Taxes for which the other Party is allocated under this Article II (a “ Refund Recipient ”), such Refund Recipient

 

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shall pay to the other Party the entire amount of the refund (including interest received from the relevant Tax Authority, but net of any Taxes imposed with respect to such refund and any other reasonable costs) within 10 business days of receipt thereof; provided , however , that the other Party, upon the request of such Refund Recipient, shall repay the amount paid to the other Party (plus any penalties, interest or other charges imposed by the relevant Tax Authority) in the event such Refund Recipient is required by applicable law to repay such refund. In the event a Party would be a Refund Recipient but for the fact it elected to apply a refund to which it would otherwise have been entitled against a Tax liability arising in a subsequent taxable period, then such Party shall be treated as a Refund Recipient and the economic benefit of so applying the refund shall be treated as a refund, and shall be paid within 10 business days of the due date of the Tax Return to which such refund is applied to reduce the subsequent Tax liability.

(b) Notwithstanding anything in Section 2.08(a) to the contrary, no payments shall be required pursuant to Section 2.08(a) for overpayments shown on any originally filed Income Tax Return for a Pre-Distribution Tax Period (but not including any amended Income Tax Return or other Adjustment Request), unless the overpayment exceeds the amount set forth on Exhibit A , in which case: (A) Baxalta shall be a Refund Recipient to the extent such overpayment is shown on a Baxalta Separate Return but is attributable to the Baxter Business and (B) Baxter shall be a Refund Recipient to the extent such overpayment is shown on a Joint Return or Baxter Separate Return but is attributable to the Baxalta Business, in each case, as determined pursuant to Section 2.06 . For the avoidance of doubt, any refund of Income Taxes for a Pre-Distribution Tax Period received pursuant to a Final Determination, Adjustment Request, or other adjustment by a Tax Authority (but not an originally filed Income Tax Return), shall be governed by Section 2.02(b) and Section 2.08(a) .

Section 2.09 Carrybacks and Claims for Refund

(a) Baxalta hereby agrees that if a Tax Return of a member of the Baxalta Group for Post-Distribution Tax Period reflects any Tax Attribute, then the applicable member of the Baxalta Group shall elect to to relinquish, waive or otherwise forgo the right to carry back any such Tax Attribute to a Pre-Distribution Tax Period with respect to a Joint Return to the extent permissible under applicable Law. Such elections shall include, but not be limited to, the election described in Treasury Regulation Section 1.1502-21(b)(3)(ii)(B), and any analogous election under state, local, or foreign Income Tax Laws, to waive the carryback of net operating losses or other Tax Attribute for U.S. federal Income Tax purposes.

(b) If, notwithstanding the provisions of Section 2.09(a) , Baxalta is required to carryback a Tax Attribute, Baxter shall promptly remit to Baxalta any Tax Benefit that the Baxter Group actually realizes with respect to any such carryback on an “as and when” realized basis.

(c) If Baxalta has a Tax Attribute that must be carried back to any Pre-Distribution Tax Period, Baxalta shall notify Baxter in writing that such Tax Attribute must be carried back. Such notification shall include a description in reasonable detail of the basis for any Tax Benefit and the amount thereof, and a certification by an appropriate officer of Baxalta setting forth Baxalta’s belief (together with supporting analysis) that the Tax treatment of such Tax Attribute is more likely than not correct.

 

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(d) If Baxter pays any amount to Baxalta under Section 2.09(b) and, as a result of a subsequent Final Determination, a Tax Benefit that gave rise to such payment is subsequently disallowed, Baxter shall notify Baxalta of the amount to be repaid to Baxter, and Baxalta shall then repay such amount to Baxter, together with any interest, fines, additions to Tax, penalties or any additional amounts imposed by a Taxing Authority relating thereto.

(e) For purposes of this Agreement, a Tax Benefit shall be deemed to have been realized at the time any actual refund of Taxes is received or applied against other cash Taxes due, or at the time of filing a Tax Return (including a Tax Return relating to estimated Taxes) on which a Tax Item is applied in reduction of cash Taxes that would otherwise be payable.

(f) For the avoidance of doubt, and notwithstanding Section 2.08 , Baxter shall be entitled to the refund of any Taxes or other Tax Benefit attributable to the use or carryback of any Tax Attribute that was generated on a Joint Return or Baxter Separate Return for any Tax Period that includes the Distribution Date or any Post-Distribution Tax Period.

Section 2.10 Allocation of Earnings and Profits and Tax Attributes.

(a) The allocation of earnings and profits between the Baxter Group and the Baxalta Group shall be determined in accordance with the principles contained in Exhibit B .

(b) All Tax Attributes determined on a consolidated or combined basis for Pre-Distribution Tax Periods shall be allocated to the Baxter Group and Baxalta Group in accordance with the Code and the Treasury Regulations (and any applicable state, local, or non-U.S. law or regulation). Except as provided in Section 2.10(a) , Baxter shall reasonably determine the amounts and proper allocation of such Tax Attributes as of the Distribution Date; provided that Baxalta shall be entitled to participate in such determination. Baxter and Baxalta agree to compute their Tax liabilities for Post-Distribution Tax Periods consistent with that determination and allocation and consistent with the principles contained in Exhibit B .

(c) The allocations made under this Section 2.10 shall be revised by Baxter to reflect each subsequent Final Determination that affects such allocations; provided that Baxalta shall be entitled to participate in such determination.

ARTICLE III

TAX RETURNS, TAX CONTESTS AND

OTHER ADMINISTRATIVE MATTERS

Section 3.01 Responsibility of Preparing Tax Returns .

(a) Baxter shall timely prepare any Joint Returns or Baxter Separate Returns that are required or permitted to be filed for any Tax Period. If Baxalta is responsible for filing any such Tax Return under Section 3.03(a) , Baxter shall, subject to Section  3.01(c) , promptly deliver such prepared Tax Return to Baxalta reasonably in advance of the applicable filing deadline.

 

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(b) Baxalta shall timely prepare any Baxalta Separate Returns that are required or permitted to be filed for any Tax Period. If Baxter is responsible for filing any such Tax Return under Section 3.03(a) , Baxalta shall, subject to Section 3.01(c) , promptly deliver such prepared Tax Return to Baxter reasonably in advance of the applicable filing deadline.

(c) To the extent that any Tax Return described in Section  3.01(a) or 3.01(b) directly relates to matters for which another Party may have an indemnification obligation to the Tax Return Preparer, or that may give rise to a refund to which that other Party would be entitled under this Agreement, the Tax Return Preparer shall (i) prepare the relevant portions of the Tax Return on a basis consistent with past practice, except (A) as required by applicable Law or to correct any clear error, (B) as a result of changes or elections made on any Joint Return that do not relate primarily to the Baxalta Group or (C) as mutually agreed by the Parties; (ii) notify the other Party of any such portions not prepared on a basis consistent with past practice; (iii) provide the other Party a reasonable opportunity to review the relevant portions of the Tax Return; (iv) consider in good faith any reasonable comments made by the other Party; and (v) use commercially reasonable efforts to incorporate, in the portion of such Tax Return related to the other Party’s potential indemnification obligation (or refund entitlement), any reasonable comments made by the other Party relating to the Tax Return Preparer’s compliance with clause (i). The Parties shall attempt in good faith to resolve any issues arising out of the review of any such Tax Return.

Section 3.02 Information Packages . Each Party (i) shall provide to the other Party (in the format reasonably determined by the other Party) all information and assistance requested by the other Party as reasonably necessary to prepare any Tax Return described in Section 3.01(a) or Section 3.01(b) on a timely basis consistent with the current practices of the Baxter Group in preparing Tax Returns and (ii) in so providing such information and assistance, shall use any systems and third party service providers as are consistent with the current practices of the Baxter Group in preparing Tax Returns.

Section 3.03 Filing of Tax Returns and Payment of Taxes .

(a) Each Party shall execute and timely file each Tax Return that it is responsible for filing under applicable Law and shall timely pay to the relevant Taxing Authority any amount shown as due on each such Tax Return. The obligation to make payments pursuant to this Section 3.03(a) shall not affect a Party’s right, if any, to receive payments under Section 3.03(b) or otherwise be indemnified with respect to that Tax liability.

(b) In addition to its obligations under Section 3.01(c) , the relevant Tax Return Preparer shall, no later than 5 business days before the due date (including extensions) of any Tax Return described in Section 3.01(a) or (b) , notify the other Party of any amount (or any portion of any such amount) shown as due on that Tax Return for which the other Party must indemnify the Tax Return Preparer under this Agreement. The other Party shall pay such amount to the Tax Return Preparer no later than the due date (including extensions) of the relevant Tax Return. A failure by an Indemnitee to give notice as provided in this Section 3.03(b) shall not relieve the Indemnifying Party’s indemnification obligations under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure.

 

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(c) Each Party shall, in its sole discretion, be permitted to file any Adjustment Request for any Tax Returns that it is responsible for preparing pursuant to Section 3.01(a) or Section 3.01(b) ; provided that, unless otherwise required by a Final Determination, no such Adjustment Request shall be filed for any Tax Period that begins on or before the Distribution Date (including any Straddle Period) to the extent that any such Adjustment Request (i) would reasonably be expected to materially adversely impact the other Party or (ii) is inconsistent with past practice, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed.

Section 3.04 Tax Contests

(a) Baxter or Baxalta, as applicable, shall, within 10 business days of becoming aware of any Tax Contest (including a Transaction Tax Contest) that could reasonably be expected to cause the other Party to have an indemnification obligation under this Agreement, notify the other Party of such Tax Contest and thereafter promptly forward or make available to the Indemnifying Party copies of notices and communications relating to the relevant portions of such Tax Contest. A failure by an Indemnitee to give notice as provided in this Section 3.04(a) (or to promptly forward any such notices or communications) shall not relieve the Indemnifying Party’s indemnification obligations under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure.

(b) Baxter and Baxalta each shall have the exclusive right to control the conduct and settlement of any Tax Contest, other than a Transaction Tax Contest, relating to any Tax Return that it is responsible for preparing pursuant to Section 3.01 . Notwithstanding the foregoing, if the conduct or settlement of any portion or aspect of any such Tax Contest could reasonably be expected to cause a Party to have an indemnification obligation under this Agreement, then (i) the Indemnifying Party shall have the right to share joint control over the conduct and settlement of that portion or aspect and (ii) whether or not the Indemnifying Party exercises that right, the Indemnitee shall not accept or enter into any settlement without the consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed.

(c) Baxter and Baxalta shall have the right to control jointly the conduct and settlement of any Transaction Tax Contest. Notwithstanding the foregoing, Baxter shall be entitled to control exclusively the conduct and settlement of any Transaction Tax Contest if Baxter notifies Baxalta that (notwithstanding the rights and obligations of the Parties under this Agreement) Baxter agrees to pay (and indemnify Baxalta against) any Tax-Related Losses resulting from such Transaction Tax Contest.

(d) In any case where the Parties control jointly the conduct and settlement of any Tax Contest (or portion or aspect thereof): (i) neither Party shall accept or enter into any settlement of such Tax Contest (or the relevant portion or aspect thereof) without the consent of the other Party, which shall not be unreasonably withheld or delayed, (ii) both Parties shall have a right to review and consent to, which consent shall not be unreasonably withheld or delayed, any correspondence or filings to be submitted to any Taxing Authority with respect to such Tax Contest (or the relevant portion or aspect thereof) and (iii) both Parties shall have the right to attend any formally scheduled meetings with any Tax Authority or hearings.

 

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(e) The Parties agree to reasonably cooperate and act in good faith with respect to any Tax Contest that covers Taxes for which Baxter and Baxalta are both responsible pursuant to Article II , including, without limitation, in connection with the determination as to whether to accept any settlement offer proposed by any Tax Authority.

Section 3.05 Reliance by Baxter . If any member of the Baxalta Group supplies information to a member of the Baxter Group in connection with a Tax liability and an officer of a member of the Baxter Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Baxter Group identifying the information being so relied upon, the chief financial officer of Baxalta (or any officer of Baxalta as designated by the chief financial officer of Baxalta) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete. Baxalta agrees to indemnify and hold harmless each member of the Baxter Group and its directors, officers and employees from and against any fine, penalty, or other cost or expense of any kind attributable to a member of the Baxalta Group having supplied, pursuant to this Article III , a member of the Baxter Group with inaccurate or incomplete information in connection with a Tax liability.

Section 3.06 Reliance by Baxalta . If any member of the Baxter Group supplies information to a member of the Baxalta Group in connection with a Tax liability and an officer of a member of the Baxalta Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Baxalta Group identifying the information being so relied upon, the chief financial officer of Baxter (or any officer of Baxter as designated by the chief financial officer of Baxter) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete. Baxter agrees to indemnify and hold harmless each member of the Baxalta Group and its directors, officers and employees from and against any fine, penalty, or other cost or expense of any kind attributable to a member of the Baxter Group having supplied, pursuant to this Article III , a member of the Baxalta Group with inaccurate or incomplete information in connection with a Tax liability.

Section 3.07 Tax Incentives . Baxter or Baxalta, as applicable, shall (i) provide written notice to the other Party describing any action that could reasonably be expected to cause the other Party to lose all or any part of, or otherwise affect the terms and conditions of, any Tax Incentive granted to the other Party by any Tax Authority, or that could reasonably be expected to cause the other Party to repay any Tax Incentive previously granted by any Tax Authority and (ii) shall consult with the other Party regarding any such proposed action reasonably in advance of taking such action.

Section 3.08 Expenses and Applicability . After the Distribution, each Party shall bear its own expenses in the course of any Tax Contest, other than expenses included in the definition of Tax-Related Losses.

 

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ARTICLE IV

TAX-FREE STATUS

Section 4.01 Tax Opinions/Rulings and Representation Letters . Each of Baxter and Baxalta hereby represents and agrees that (i) it has or will read the Representation Letters deliverable to the applicable Tax Advisors in connection with the rendering of the Tax Opinions prior to the date submitted and has or will read the Representation Letters (including the Ruling Request) delivered to the IRS or other Tax Authorities in connection with obtaining the Rulings prior to the date of this Agreement and (ii) subject to any qualifications therein, all information contained in such Representation Letters and Rulings that concerns or relates to such Party or its Affiliates will be true, correct and complete

Section 4.02 Restrictions on Baxalta.

(a) Baxalta agrees that it will not take or fail to take, or permit any member of the Baxalta Group to take or fail to take, any action where such action or failure to act would be inconsistent with or cause to be untrue any material, information, covenant or representation in any Representation Letters or Tax Opinions/Rulings. Baxalta agrees that it will not take or fail to take, or permit any member of the Baxalta Group to take or fail to take, any action which prevents or could reasonably be expected to prevent (i) the Tax-Free Status, or (ii) any transaction contemplated by the Distribution Agreement which is intended by the parties to be tax-free (including, but not limited to, those transactions which the IRS has ruled qualify for tax-free treatment in the IRS Ruling) from so qualifying, including, in the case of Baxalta, issuing any Baxalta Capital Stock that would prevent the Distribution from qualifying as a tax-free distribution within the meaning of Section 355 of the Code.

(b) Baxalta agrees that, from the date hereof until the first day after the two-year anniversary of the Distribution Date, it will (i) maintain its status as a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (ii) not engage in any transaction that would result in it ceasing to be a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (iii) cause each Baxalta Affiliate whose Active Trade or Business is relied upon in the Tax Opinions/Rulings for purposes of qualifying a transaction as tax-free pursuant to Section 355 of the Code or other Tax Law to maintain its status as a company engaged in such Active Trade or Business for purposes of Code Section 355(b)(2) of the Code and any such other applicable Tax Law, and (iv) not engage in any transaction or permit any Baxalta Affiliate to engage in any transaction that would result in a Baxalta Affiliate described in clause (iii) hereof ceasing to be a company engaged in the relevant Active Trade or Business for purposes of Section 355(b)(2) or such other applicable Tax Law, in each case, taking into account Section 355(b)(3) of the Code for purposes of clauses (i) through (iv) hereof.

 

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(c) Baxalta agrees that, from the date hereof until the first day after the two-year anniversary of the Distribution Date, it shall not (and shall not cause or permit of of its Affiliates to), in a single transaction or series of transactions:

(i) enter into any Proposed Acquisition Transaction or, to the extent Baxalta has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur (whether by (A) redeeming rights under a shareholder rights plan, (B) finding a tender offer to be a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition Transaction, (C) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the DGCL or any similar corporate statute, any “fair price” or other provision of Baxalta’s charter or bylaws or otherwise, or (D) amending its certificate of incorporation to declassify its Board of Directors or approving any such amendment, or otherwise),

(ii) liquidate, partially liquidate, merge or consolidate with any other Person that was not already wholly owned by a member of the Baxalta Group prior to such transaction,

(iii) sell or transfer (other than sales or transfers of inventory in the ordinary course of business) all or substantially all of the assets that were transferred to Baxalta as part of the Contribution or sell or transfer (or cause or permit to be transferred) 25% or more of the gross assets of any Active Trade or Business or 25% or more of the consolidated gross assets of Baxalta and its Affiliates (such percentages to be measured based on fair market value as of the Distribution Date),

(iv) redeem or otherwise repurchase (directly or through an Affiliate) any Baxalta Capital Stock, or rights to acquire Baxalta Capital Stock, except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by Revenue Procedure 2003-48),

(v) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of Baxalta Capital Stock (including, without limitation, through the conversion of one class of Baxalta Capital Stock into another class of Baxalta Capital Stock), or

(vi) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation made in the Representation Letters or the Tax Opinions/Rulings) which in the aggregate (and taking into account any other transactions described in this subparagraph (c)) would be reasonably likely to have the effect of causing or permitting one or more persons (whether or not acting in concert) to acquire directly or indirectly stock representing a Fifty-Percent or Greater Interest in Baxalta or otherwise jeopardize the Tax-Free Status;

unless, prior to taking any such action set forth in the foregoing clauses (i) through (vi), (A) Baxalta shall have requested that Baxter obtain a Ruling in accordance with Section 4.04(b) and (d)  of this Agreement to the effect that such transaction will not affect the Tax-Free Status and Baxter shall have received such a Ruling in form and substance reasonably satisfactory to Baxter (and in determining whether a Ruling is reasonably satisfactory, Baxter may consider, among other factors, the appropriateness of any underlying assumptions and management’s

 

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representations made in connection with such Ruling), (B) Baxalta shall provide Baxter with an Unqualified Tax Opinion in form and substance reasonably satisfactory to Baxter (and in determining whether an opinion is reasonably satisfactory, Baxter may consider, among other factors, the appropriateness of any underlying assumptions and management’s representations if used as a basis for the opinion) or (C) Baxter shall have waived the requirement to obtain such Ruling or Unqualified Tax Opinion.

(d) Certain Issuances of Baxalta Capital Stock . If Baxalta proposes to enter into any Section 4.02(d) Acquisition Transaction or, to the extent Baxalta has the right to prohibit any Section 4.02(d) Acquisition Transaction, proposes to permit any Section 4.02(d) Acquisition Transaction to occur, in each case, during the period from the date hereof until the first day after the two-year anniversary of the Distribution Date, Baxalta shall provide Baxter, no later than ten days following the signing of any written agreement with respect to the Section 4.02(d) Acquisition Transaction, with a written description of such transaction (including the type and amount of Baxalta Capital Stock to be issued in such transaction) and a certificate of the Board of Directors of Baxalta to the effect that the Section 4.02(d) Acquisition Transaction is not a Proposed Acquisition Transaction or any other transaction to which the requirements of Section 4.02(c) apply (a “ Board Certificate ”).

Section 4.03 Restrictions on Baxter . Baxter agrees that it will not take or fail to take, or permit any member of the Baxter Group to take or fail to take, any action where such action or failure to act would be inconsistent with or cause to be untrue any material, information, covenant or representation in any Representation Letters or Tax Opinions/Rulings. Baxter agrees that it will not take or fail to take, or permit any member of the Baxter Group to take or fail to take, any action which prevents or could reasonably be expected to prevent (i) the Tax-Free Status, or (ii) any transaction contemplated by the Distribution Agreement which is intended by the parties to be tax-free (including, but not limited to, those transactions which the IRS has ruled qualify for tax-free treatment in the IRS Ruling) from so qualifying, including, in the case of Baxter, issuing any Baxter Capital Stock that would prevent the Distribution from qualifying as a tax-free distribution within the meaning of Section 355 of the Code.

Section 4.04 Procedures Regarding Opinions and Rulings .

(a) If Baxalta notifies Baxter that it desires to take one of the actions described in clauses (i) through (vi) of Section 4.02(c) (a “ Notified Action ”), Baxter and Baxalta shall reasonably cooperate to attempt to obtain the Ruling or Unqualified Tax Opinion referred to in Section 4.02(c) , unless Baxter shall have waived the requirement to obtain such Ruling or Unqualified Tax Opinion.

(b) Baxter agrees that at the reasonable request of Baxalta pursuant to Section 4.02(c) , Baxter shall cooperate with Baxalta and use its reasonable best efforts to seek to obtain, as expeditiously as possible, a Ruling from the IRS or other applicable Tax Authority or an Unqualified Tax Opinion for the purpose of permitting Baxalta to take the Notified Action. Further, in no event shall Baxter be required to file any Ruling Request under this Section 4.04(b) unless Baxalta represents that (i) it has read the Ruling Request, and (ii) all information and representations, if any, relating to any member of the Baxalta Group, contained in the Ruling Request documents are (subject to any qualifications therein) true, correct and complete. Baxalta

 

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shall reimburse Baxter for all reasonable costs and expenses incurred by the Baxter Group in obtaining a Ruling or Unqualified Tax Opinion requested by Baxalta within ten Business Days after receiving an invoice from Baxter therefor.

(c) Baxter shall have the right to obtain a Ruling or an Unqualified Tax Opinion at any time in its sole and absolute discretion. If Baxter determines to obtain a Ruling or an Unqualified Tax Opinion, Baxalta shall (and shall cause each Affiliate of Baxalta to) cooperate with Baxter and take any and all actions reasonably requested by Baxter in connection with obtaining the Ruling or Unqualified Tax Opinion (including, without limitation, by making any representation or covenant or providing any materials or information requested by the IRS or Tax Advisor; provided that Baxalta shall not be required to make (or cause any Affiliate of Baxalta to make) any representation or covenant that is inconsistent with historical facts or as to future matters or events over which it has no control). Baxter and Baxalta shall each bear its own costs and expenses in obtaining a Ruling or an Unqualified Tax Opinion requested by Baxter.

(d) Baxalta hereby agrees that Baxter shall have sole and exclusive control over the process of obtaining any Ruling, and that only Baxter shall apply for a Ruling. In connection with obtaining a Ruling pursuant to Section 4.04(b) , (i) Baxter shall keep Baxalta informed in a timely manner of all material actions taken or proposed to be taken by Baxter in connection therewith; (ii) Baxter shall (A) reasonably in advance of the submission of any Ruling Request documents provide Baxalta with a draft copy thereof, (B) reasonably consider Baxalta’s comments on such draft copy, and (C) provide Baxalta with a final copy; and (iii) Baxter shall provide Baxalta with notice reasonably in advance of, and Baxalta shall have the right to attend, any formally scheduled meetings with the IRS (subject to the approval of the IRS) that relate to such Ruling. Neither Baxalta nor any Affiliates of Baxalta shall seek any guidance from the IRS or any other Tax Authority (whether written, verbal or otherwise) at any time concerning the Transactions.

Section 4.05 Liability for Tax-Related Losses .

(a) Notwithstanding anything in this Agreement or the Distribution Agreement to the contrary, subject to Section 4.05(c) , Baxalta shall be responsible for, and shall indemnify and hold harmless Baxter and each of its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Tax-Related Losses that are attributable to or result from any one or more of the following: (i) the acquisition (other than pursuant to the Transactions, including the Debt-for-Equity Exchanges, or any other disposition of Baxalta Stock by Baxter) of all or a portion of the stock and/or assets of Baxalta and/or its subsidiaries by any means whatsoever by any Person, (ii) any negotiations, understandings, agreements or arrangements by Baxalta with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Baxalta representing a Fifty-Percent or Greater Interest therein, (iii) any action or failure to act by Baxalta or a member of the Baxalta Group after the Distribution (including, without limitation, any amendment to Baxalta’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of Baxalta stock (including, without limitation, through the

 

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conversion of one class of Baxalta Capital Stock into another class of Baxalta Capital Stock), (iv) any act or failure to act by Baxalta or any Baxalta Affiliate described in Section 4.02 (regardless whether such act or failure to act is covered by a Ruling, Unqualified Tax Opinion or waiver described in clause (A), (B) or (C) of Section 4.02(c) or a Board Certificate described in Section 4.02(d)) or (v) any breach by Baxalta of its agreement and representations set forth in Section 4.01 .

(b) Notwithstanding anything in this Agreement or the Distribution Agreement to the contrary, subject to Section 4.05(c) , Baxter shall be responsible for, and shall indemnify and hold harmless Baxalta and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Tax-Related Losses that are attributable to, or result from any one or more of the following: (i) the acquisition (other than pursuant to the Transactions, including the Debt-for-Equity Exchanges) of all or a portion of the stock and/or assets of Baxter and/or its subsidiaries by any means whatsoever by any Person, (ii) any negotiations, understandings, agreements or arrangements by Baxter with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Baxter representing a Fifty-Percent or Greater Interest therein, (iii) any action or failure to act by Baxter or a member of the Baxter Group after the Distribution (including, without limitation, any amendment to Baxter’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of Baxter stock (including, without limitation, through the conversion of one class of Baxter Capital Stock into another class of Baxter Capital Stock), (iv) any act or failure to act by Baxter or any Baxter Affiliate described in Section 4.03 , or (v) any breach by Baxter of its agreement and representations set forth in Section 4.01 .

(c)

(i) To the extent that any Tax-Related Loss is subject to indemnity under both Sections 4.05(a) and Section 4.05(b) , responsibility for such Tax-Related Loss shall be shared by Baxter and Baxalta according to relative fault. If the indemnification obligations resulting from the failure of the Transactions to have Tax-Free Status that are not otherwise addressed by any of the provisions in this Section 4.05, any Tax-Related Losses resulting therefrom shall be allocated to (i) Baxter in an amount equal to such Tax-Related Loss multiplied by the Baxter Liability Percentage and (ii) to Baxalta in an amount equal to such Tax-Related Loss multiplied by the Baxalta Liability Percentage.

(ii) Notwithstanding anything in Section 4.05(b) or Section 4.05(c)(i) or any other provision of this Agreement or the Distribution Agreement to the contrary, with respect to (I) any Tax-Related Loss resulting from Section 355(e) of the Code (other than as a result of an acquisition of a Fifty-Percent or Greater Interest in Baxter) and (II) any other Tax-Related Loss resulting (for the absence of doubt, in whole or in part) from an acquisition (other than pursuant to the Transactions, including the Debt-for-Equity Exchanges, or any other disposition of Baxalta Stock by Baxter) after the Distribution of any stock or assets of Baxalta (or any Baxalta Affiliate) by any means whatsoever by any

 

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Person or any action or failure to act by Baxalta affecting the voting rights of Baxalta stock, Baxalta shall be responsible for, and shall indemnify and hold harmless Baxter and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of such Tax-Related Loss.

(iii) Notwithstanding anything in Section 4.05(a) or Section 4.05(c)(i) or any other provision of this Agreement or the Distribution Agreement to the contrary, with respect to (I) any Tax-Related Loss resulting from Section 355(e) of the Code (other than as a result of an acquisition of a Fifty-Percent or Greater Interest in Baxalta) and (II) any other Tax-Related Loss resulting (for the absence of doubt, in whole or in part) from an acquisition (other than pursuant to the Transactions, including the Debt-for-Equity Exchanges) after the Distribution of any stock or assets of Baxter (or any Baxter Affiliate) by any means whatsoever by any Person or any action or failure to act by Baxter affecting the voting rights of Baxter stock, Baxter shall be responsible for, and shall indemnify and hold harmless Baxalta and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of such Tax-Related Loss.

(iv) Notwithstanding any provision herein to the contrary (including, without limitation, Section 4.05(c)(i)) , Baxter shall be responsible for, and shall indemnify and hold harmless Baxalta and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Tax-Related Losses relating to the failure of the Debt-for-Equity Exchanges or Subsequent Distributions to have Tax-Free Status. This Section 4.05(c)(iv) shall apply only if the Distribution continues to have Tax-Free Status.

Section 4.06 Reporting . Baxter and Baxalta shall (i) timely file any appropriate information and statements (including as required by Section 6045B of the Code and Section 1.355-5 and, to the extent applicable, Section 1.368-3 of the Regulations) to report each step of the Transactions as qualifying for its Tax-Free Status and (ii) absent a change of Law or an applicable Final Determination otherwise, not take any position on any Tax Return that is inconsistent with such qualification. Each Party covenants and agrees that it will make a protective election under Section 336(e) of the Code with respect to the Transactions.

ARTICLE V

PROCEDURAL MATTERS

Section 5.01 Cooperation . Each Party shall cooperate with reasonable requests from the other Party in matters covered by this Agreement, including in connection with the preparation and filing of Tax Returns, the calculation of Taxes, the determination of the proper financial accounting treatment of Tax Items and the conduct and settlement of Tax Contests. Such cooperation shall include:

(a) retaining until the expiration of the relevant statute of limitations (including extensions) records, documents, accounting data, computer data and other information (“ Records ”) necessary for the preparation, filing, review, audit or defense of all Tax Returns relevant to an obligation, right or liability of either Party under this Agreement;

 

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(b) providing the other Party reasonable access to Records and to its personnel (ensuring their cooperation) and premises during normal business hours to the extent relevant to an obligation, right or liability of the other Party under this Agreement or otherwise reasonably required by the other Party to complete Tax Returns or to compute the amount of any payment contemplated by this Agreement; and

(c) notifying the other Party prior to disposing of any relevant Records and affording the o t her Party the opportunity to take possession or make copies of such Records at its discretion.

Section 5.02 Interest . Any payments required pursuant to this Agreement that are not made within the time period specified in this Agreement shall bear interest from the end of that period. Interest required to be paid pursuant to this Agreement shall, unless otherwise specified, be computed at the rate and in the manner provided in the Code for interest on underpayments and overpayments, as applicable, for the relevant period.

Section 5.03 Indemnification Claims and Payments .

(a) An Indemnitee shall be entitled to make a claim for payment with respect to Taxes under this Agreement when the Indemnitee determines that it is entitled to such payment and is able to calculate with reasonably accuracy the amount of such payment. Except as otherwise provided in Section 3.03(b) , the Indemnitee shall provide to the Indemnifying Party notice of such claim within 60 business days of the first date on which it so becomes entitled to make such claim. Such notice shall include a description of such claim and a detailed calculation of the amount claimed.

(b) Except as otherwise provided in Section 3.03(b) , the Indemnifying Party shall make the claimed payment to the Indemnitee within 30 business days after receiving such notice, unless the Indemnifying Party reasonably disputes its liability for, or the amount of, such payment.

(c) A failure by an Indemnitee to give notice as provided in Section 3.03(b) or 5.03(a) shall not relieve the Indemnifying Party’s indemnification obligations under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure.

(d) Nothing in this Section 5.03 shall prejudice a Party’s right to receive payments pursuant to Section 3.03(b) .

Section 5.04 Treatment of Indemnity Payments . In the absence of any change in Tax treatment under the Code or other applicable Tax Law and except as provided in Section 5.02 , any payments made by a Party under this Agreement shall be reported for Tax purposes by the payor and the recipient as distributions or capital contributions, as appropriate, occurring immediately before the Distribution (but only to the extent that the payment does not relate to a Tax allocated to the payor in accordance with Section 1552 of the Code or the regulations thereunder or Treasury Regulation Section 1.1502-33(d) (or under corresponding principles of other applicable Tax Laws)) or as payments of an assumed or retained liability.

 

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Section 5.05 Tax Gross-Up . If (i) notwithstanding the manner in which any payment under this Agreement is reported, there is a Final Determination with respect to the Tax liability of a Party as a result of its receipt of a payment pursuant to this Agreement or (ii) any deduction or withholding is required by Law to be made from any payment (other than an interest payment) under this Agreement, such payment shall be appropriately adjusted so that the amount of such payment, reduced by the amount of all Income Taxes payable with respect to the receipt thereof or the amount of all deduction or withholding required by Law with respect to such payment, as applicable (in each case, taking into account all correlative Tax Benefits resulting from the payment of such Income Taxes), shall equal the amount of the payment which the Party receiving such payment would otherwise be entitled to receive pursuant to this Agreement.

Section 5.06 Dispute Resolution . Notwithstanding Section 6.06 , but subject to Section 6.16 , any and all disputes between Baxter and Baxalta arising out of any provision of this Agreement shall be resolved through the procedures provided in Article VII of the Distribution Agreement.

ARTICLE VI

MISCELLANEOUS

Section 6.01 Termination . This Agreement will terminate without further action at any time before the Distribution upon termination of the Distribution Agreement. If terminated, no Party will have any Liability of any kind to the other Party or any other Person on account of this Agreement, except as provided in the Distribution.

Section 6.02 Survival . Except as expressly set forth in this Agreement, the covenants and indemnification obligations in this Agreement shall survive the Distribution and shall remain in full force and effect.

Section 6.03 Distribution Agreement . The Parties agree that, in the event of a conflict between the terms of this Agreement and the Distribution Agreement with respect to the subject matter hereof, the terms of this Agreement shall govern.

Section 6.04 Confidentiality . Each Party hereby acknowledges that confidential Information of such Party or its Subsidiaries may be exposed to employees and agents of the other Party or its Subsidiaries as a result of the activities contemplated by this Agreement. Each Party agrees, on behalf of itself and its Subsidiaries, that such Party’s obligations with respect to Information and data of the other Party or its Subsidiaries shall be governed by the Distribution Agreement.

Section 6.05 Counterparts; Entire Agreement .

(a) This Agreement may be executed in one or more counterparts, all of which counterparts shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each Party and delivered to the other Party. This Agreement may be executed by facsimile or PDF signature and a facsimile or PDF signature shall constitute an original for all purposes.

 

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(b) This Agreement, the Separation Agreement, the other Ancillary Agreements and the Appendices, Exhibits and Schedules hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter, and there are no agreements or understandings between the Parties with respect to the subject matter hereof other than those set forth or referred to herein or therein.

Section 6.06 Governing Law . This Agreement shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of Laws and principles of the State of Delaware, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.

Section 6.07 Waiver of Jury Trial . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT, IN THE EVENT OF ANY LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.07.

Section 6.08 No Double Recovery . No provision of this Agreement shall be construed to provide an indemnity or other recovery for any costs, damages, or other amounts for which the damaged Party has been fully compensated under any other provision of this Agreement or under any other agreement or action at law or equity. Unless expressly required in this Agreement, a Party shall not be required to exhaust all remedies available under other agreements or at law or equity before recovering under the remedies provided in this Agreement.

Section 6.09 Assignability . Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by either Party without the prior written consent of the other Party. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns. Notwithstanding the foregoing, either Party may assign this Agreement without consent in connection with (a) a merger transaction in which such Party is not the surviving entity and the surviving entity acquires or assumes all or substantially all of

 

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such Party’s assets, or (b) the sale of all or substantially all of such Party’s assets; provided , however, that the assignee expressly assumes in writing all of the obligations of the assigning Party under this Agreement, and the assigning Party provides written notice and evidence of such assignment and assumption to the non-assigning Party. No assignment permitted by this Section 6.09 shall release the assigning Party from liability for the full performance of its obligations under this Agreement.

Section 6.10 Authority . Each of the Parties represents to the other that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate or other action, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.

Section 6.11 Third-Party Beneficiaries . The provisions of this Agreement are solely for the benefit of the Parties hereto and are not intended to confer upon any Person except the Parties hereto any rights or remedies hereunder and (b) there are no third-party beneficiaries of this Agreement and this Agreement shall not provide any third Person with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to this Agreement.

Section 6.12 Notices . Each party giving any notice required or permitted under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by e-mail (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a Notice):

If to Baxter:

Baxter International Inc.

One Baxter Parkway

Deerfield, Illinois 60015

Attn: General Counsel

E-mail: general_counsel@baxter.com

If to Baxalta:

Baxalta Incorporated

One Baxter Parkway

Deerfield, Illinois 60015

Attn: General Counsel

E-mail: general_counsel@baxalta.com

 

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A party may change the address for receiving notices under this Agreement by providing written notice of the change of address to the other.

Section 6.13 Severability . If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. Upon any such determination, any such provision, to the extent determined to be invalid, void or unenforceable, shall be deemed replaced by a provision that such court determines is valid and enforceable and that comes closest to expressing the intention of the invalid, void or unenforceable provision.

Section 6.14 Headings . The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 6.15 Waivers of Default . No failure or delay of either Party (or its Affiliates) in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. Waiver by either Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default.

Section 6.16 Specific Performance . In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, Baxter shall have the right to specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. Baxalta shall not oppose the granting of such relief on the basis that money damages are an adequate remedy. The Parties agree that the remedies at law for any breach or threatened breach hereof, including monetary damages, are inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived. The Parties acknowledge and agree that the right of specific enforcement is an integral part of this Agreement and without that right, neither Baxter nor Baxalta would have entered into this Agreement.

Section 6.17 Amendments . No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by either Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of each Party.

Section 6.18 Compliance by Affiliates . The Parties shall cause their respective Affiliates to comply with this Agreement.

 

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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the day and year first written above.

 

BAXTER INTERNATIONAL INC.

By:

/s/ James K. Saccaro

Name:

James K. Saccaro

Title:

Corporate Vice President

BAXALTA INCORPORATED

By:

/s/ Robert J. Hombach

Name:

Robert J. Hombach

Title:

Corporate Vice President and Chief Financial Officer

[Signature Page to Tax Matters Agreement]


EXHIBIT A

$2,000,000


EXHIBIT B

The Parties agree that earnings and profits shall be allocated between the Baxter Group and the Baxalta Group in accordance with the below described methods. For purposes of the below described methods: (i) “ Distributing ” refers to each entity treated as a corporation for U.S. federal income tax purposes that distributes pro rata to its shareholders the stock of another corporation pursuant to the Separation in a divisive transaction intended to qualify for nonrecognition treatment under Sections 361(c) or 355(c) (such divisive transactions a “ Divisive D Reorganization ” and “ Section 355(c) Distribution ”, respectively); (ii) “ Controlled ” refers to each entity treated as a corporation for U.S. federal income tax purposes the stock of which is distributed by Distributing in a Divisive D Reorganization or a Section 355(c) Distribution; (iii) “ Domestic ” refers to an entity formed under the laws of the United States or any State of the United States; (iv) “ Foreign ” refers to any entity that is not Domestic; (v) “ Newco Divisive D Reorganization ” refers to a Divisive D Reorganization in which Controlled is formed in connection with the plan of reorganization; and (vi) “ Oldco Divisive D Reorganization ” refers to a Divisive D Reorganization in which Controlled is not formed in connection with the plan of reorganization.

 

  A. Newco Divisive D Reorganizations with (i) Foreign Distributing and Foreign Controlled, or (ii) Domestic Distributing and Domestic Controlled. 1

Distributing’s earnings and profits, if any, shall be allocated between Distributing and Controlled in accordance with Treas. Reg. 1.312-10(a), which requires an allocation based on the relative portion of the fair market value of the assets transferred by Distributing to Controlled in connection with the reorganization as compared to the fair market value of the assets retained by Distributing. Under no circumstances will an earnings and profits deficit of Distributing be allocated to Controlled.

 

  B. Oldco Divisive D Reorganizations with Foreign Distributing and Foreign Controlled. 2

Distributing’s earnings and profits, if any, shall be allocated between Distributing and Controlled in proportion to the fair market value of the assets transferred by Distributing to Controlled in connection with the reorganization as compared to the fair market value of the assets retained by Distributing (but not including stock of Controlled). Under no circumstances is an earnings and profits deficit of Distributing to be allocated to Controlled. Controlled’s pre-reorganization earnings and profits, if any, shall remain with Controlled and shall not be allocated.

 

 

1   The Separation does not include a Newco Divisive D Reorganization that includes (i) Domestic Distributing and Foreign Controlled; or (ii) Foreign Distributing and Domestic Controlled.
2   The Separation does not include an Oldco Divisive D Reorganization that includes (i) Domestic Distributing and Foreign Controlled; (ii) Foreign Distributing and Domestic Controlled; or (iii) Domestic Distributing and Domestic Controlled.


  C. Section 355(c) Distributions with (i) Domestic Distributing and Foreign Controlled, or (ii) Foreign Distributing and Foreign Controlled. 3

Distributing’s earnings and profits, if any, shall be decreased in accordance with Treas. Reg. 1.312-10(b)(1), which requires a reduction in an amount equal to the product of such earnings and profits and a fraction, the numerator of which is the net basis of Distributing’s Controlled stock and the denominator of which the aggregate net basis of all Distributing’s properties immediately before the Section 355(c) Distribution. For these purposes, “net basis” refers to adjusted U.S. federal income tax basis of Distributing’s assets (including Controlled stock) less any liabilities to which such assets (including Controlled stock) are subject.

 

 

3   The Separation does not include a Section 355(c) Distribution that includes (i) Domestic Distributing and Domestic Controlled; or (ii) Foreign Distributing and Domestic Controlled.

Exhibit 10.3

Shareholder’s and Registration Rights Agreement

by and between

Baxter International Inc.

and

Baxalta Incorporated

Dated as of June 30, 2015


TABLE OF CONTENTS

 

ARTICLE I Definitions

  1   

Section 1.01

Definitions

  1   

Section 1.02

Interpretation

  6   

ARTICLE II Registration Rights

  7   

Section 2.01

Registration

  7   

Section 2.02

Piggyback Registrations

  10   

Section 2.03

Registration Procedures

  12   

Section 2.04

Underwritten Offerings or Exchange Offers

  18   

Section 2.05

Registration Rights Agreement with Participating Banks

  19   

Section 2.06

Registration Expenses Paid by Baxalta

  19   

Section 2.07

Indemnification

  19   

Section 2.08

Reporting Requirements; Rule 144

  22   

Section 2.09

Registration Rights Covenant

  22   

ARTICLE III Voting Restrictions

  22   

Section 3.01

Voting of Baxalta Common Stock

  22   

ARTICLE IV Miscellaneous

  23   

Section 4.01

Term

  23   

Section 4.02

Counterparts; Entire Agreement; Corporate Power

  23   

Section 4.03

Disputes

  24   

Section 4.04

Amendment

  24   

Section 4.05

Waiver of Default

  24   

Section 4.06

Successors, Assigns and Transferees

  25   

Section 4.07

Further Assurances

  26   

Section 4.08

Performance

  26   

Section 4.09

Notices

  26   

Section 4.10

Severability

  27   

Section 4.11

No Reliance on Other Party

  27   

Section 4.12

Registrations, Exchanges. etc.

  27   

Section 4.13

Mutual Drafting

  27   

Exhibit A

Form of Agreement to be Bound

 

-i-


SHAREHOLDER’S AND REGISTRATION RIGHTS AGREEMENT

This Shareholder’s and Registration Rights Agreement (this “ Agreement ”) is made as of June 30, 2015, by and between Baxter International Inc., a Delaware corporation (“ Baxter ”), and Baxalta Incorporated, a Delaware corporation and wholly owned subsidiary of Baxter (“ Baxalta ”). Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in Section 1.01 .

RECITALS

A. Pursuant to the Separation and Distribution Agreement, dated as of June 30, 2015 (the “ Separation and Distribution Agreement ”), by and between Baxter and Baxalta, Baxter will distribute more than 80% of the outstanding shares of common stock, par value $0.01 per share, of Baxalta (the “ Common Stock ”) to Baxter’s shareholders (the “ Distribution ”).

B. Baxter may Sell those shares of Common Stock that are not distributed in the Distribution (such shares not distributed in the Distribution, the “ Retained Shares ”) through one or more transactions, including pursuant to one or more transactions registered under the Securities Act.

C. Baxalta desires to grant to the Baxter Group the Registration Rights for the Retained Shares and other Registrable Securities, subject to the terms and conditions of this Agreement.

D. Baxter Group desires to grant Baxalta a proxy to vote the Retained Shares in proportion to the votes cast by Baxalta’s other shareholders, subject to the terms and conditions of this Agreement.

AGREEMENTS

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

Definitions

Section 1.01 Definitions .

As used in this Agreement, the following terms shall have the following meanings:

Affiliate ” means, when used with respect to a specified Person, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. As used in this definition, the term “ control ” (including with correlative meanings, “controlled by” and “under common control with”), when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or


otherwise. It is expressly agreed that, from and after the Distribution Date, no member of the Baxalta Group shall be deemed to be an Affiliate of any member of the Baxter Group, and no member of the Baxter Group shall be deemed to be an Affiliate of any member of the Baxalta Group.

Agreement ” has the meaning set forth in the preamble.

Ancillary Filings ” has the meaning set forth in Section 2.03(a)(i) .

Baxalta ” has the meaning set forth in the preamble and shall include Baxalta’s successors by merger, acquisition, reorganization or otherwise.

Baxalta Group ” means Baxalta, each Subsidiary of Baxalta and each Affiliate of Baxalta (in each case other than any member of the Baxter Group).

Baxalta Public Sale ” has the meaning set forth in Section 2.02(a) .

Baxter ” has the meaning set forth in the preamble and shall include Baxter’s successors by merger, acquisition, reorganization or otherwise.

Baxter Group ” means Baxter, each Subsidiary of Baxter and each Affiliate of Baxter (in each case other than any member of the Baxalta Group).

Blackout Notice ” has the meaning set forth in Section 2.01(d) .

Blackout Period ” has the meaning set forth in Section 2.01(d) .

Board ” means the board of directors of Baxalta.

Business Day ” means any day that is not a Saturday, Sunday or other day on which banking institutions doing business in New York, New York are authorized or obligated by law or required by executive order to be closed.

Common Stock ” has the meaning set forth in the recitals.

Debt ” means any indebtedness of any member of the Baxter Group, including debt securities, notes, credit facilities, credit agreements and other debt instruments, including, in each case, any amounts due thereunder.

Demand Registration ” has the meaning set forth in Section 2.01(a) .

Disadvantageous Condition ” has the meaning set forth in Section 2.01(d) .

Dispute ” has the meaning set forth in Section 4.03(a ).

Distribution ” has the meaning set forth in the recitals.

Distribution Date ” means the date and time at which the Distribution occurs.

 

-2-


Exchanges ” means one or more Public Exchanges or Private Exchanges.

Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

Exchange Offer ” means an exchange offer of Registrable Securities for outstanding securities of a Holder.

Governmental Authority ” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof.

Holder ” means any member of the Baxter Group, so long as such Person holds any Registrable Securities, and any Permitted Transferee, so long as such Person holds any Registrable Securities.

Indemnifying Party ” has the meaning set forth in Section 2.07(c) .

Indemnitee ” has the meaning set forth in Section 2.07(c) .

Initiating Holder ” has the meaning set forth in Section 2.01(a) .

Limited Transferee ” has the meaning set forth in Section 4.06(b) .

Loss ” and “ Losses ” have the meaning set forth in Section 2.07(a) .

Offering Confidential Information ” means, with respect to a Piggyback Registration, (i) Baxalta’s plan to file the relevant Registration Statement and engage in the offering so registered, (ii) any information regarding the offering being registered (including the potential timing, price, number of shares, underwriters or other counterparties, selling stockholders or plan of distribution) and (iii) any other information (including information contained in draft supplements or amendments to offering materials) provided to any Holders by Baxalta (or by third parties) in connection with a Piggyback Registration; provided, that Offering Confidential Information shall not include information that (x) was or becomes generally available to the public (including as a result of the filing of the relevant Registration Statement) other than as a result of a disclosure by any Holder, (y) was or becomes available to any Holder from a source not bound by any confidentiality agreement with Baxalta or (z) was otherwise in such Holder’s possession prior to it being furnished to such Holder by Baxalta or on Baxalta’s behalf.

Other Holders ” has the meaning set forth in Section 2.01(f) .

Participating Banks ” means such investment banks or other Persons that are not part of the Baxter Group that engage in any Exchange with one or more members of the Baxter Group.

 

-3-


Permitted Transferee ” means any Transferee, any Subsequent Transferee and, for the limited purposes set forth in Section 4.06(b) , any Limited Transferee.

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

Piggyback Registration ” has the meaning set forth in Section 2.02(a) .

Private Exchange ” means a private exchange pursuant to which one or more members of the Baxter Group shall Sell some or all of their Registrable Securities to one or more Participating Banks in exchange, directly or indirectly, for any equity interest of Baxter or the satisfaction of Debt, in a transaction or series of transactions not required to be registered under the Securities Act.

Prospectus ” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments, and all other material incorporated by reference in such prospectus.

Public Exchange ” means a public exchange pursuant to which one or more members of the Baxter Group shall Sell some or all of their Registrable Securities to one or more Participating Banks in exchange, directly or indirectly, for any equity interest of Baxter or the satisfaction of Debt, in a transaction or series of transactions registered under the Securities Act.

Registrable Securities ” means the Retained Shares and any shares of Common Stock or other securities issued with respect to, in exchange for, or in replacement of such Retained Shares; provided that the term “Registrable Securities” excludes any security (i) the offering and Sale of which has been effectively registered under the Securities Act and which has been Sold in accordance with a Registration Statement, (ii) that has been Sold by a Holder in a transaction or transactions exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof (including transactions pursuant to Rule 144) such that the further Sale of such securities by the transferee or assignee is not restricted under the Securities Act or (iii) that has been Sold by a Holder in a transaction in which such Holder’s rights under this Agreement are not, or cannot be, assigned.

Registration ” means a registration with the SEC of the offer and Sale to the public of any Registrable Securities under a Registration Statement. The terms “ Register ” and “ Registering ” shall have correlative meanings.

Registration Expenses ” means all expenses incident to the Baxalta Group’s performance of or compliance with this Agreement, including all (i) registration, qualification and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications within the United States of any Registrable Securities being registered), (iii) printing expenses, messenger, telephone and delivery expenses, (iv) internal expenses of Baxalta Group (including all salaries and expenses of employees of members of Baxalta Group performing legal or accounting duties), (v) fees and disbursements of counsel for Baxalta and customary fees and expenses for independent certified public accountants retained by the Baxalta Group (including the expenses of any comfort letters

 

-4-


or costs associated with the delivery by Baxalta Group members’ independent certified public accountants of comfort letters customarily requested by underwriters) and (vi) fees and expenses of listing any Registrable Securities on any securities exchange on which the shares of Common Stock are then listed and Financial Industry Regulatory Authority registration and filing fees; but excluding any fees or disbursements of any Holder, all expenses incurred in connection with the printing, mailing and delivering of copies of any Registration Statement, any Prospectus, any other offering documents and any amendments and supplements thereto to any underwriters and dealers; any underwriting discounts, fees or commissions attributable to the offer and Sale of any Registrable Securities, any fees and expenses of the underwriters or dealer managers, the cost of preparing, printing or producing any agreements among underwriters, underwriting agreements and blue sky or legal investment memoranda, any selling agreements and any other similar documents in connection with the offering, Sale, distribution or delivery of the Registrable Securities or other shares of Common Stock to be Sold, including any fees of counsel for any underwriters in connection with the qualification of the Registrable Securities or other shares of Common Stock to be Sold for offering and Sale or distribution under state securities laws, any stock transfer taxes, out-of-pocket costs and expenses relating to any investor presentations on any “road show” presentations undertaken in connection with marketing of the Registrable Securities and any fees and expenses of any counsel to the Holder or the underwriters or dealer managers.

Registration Period ” has the meaning set forth in Section 2.01(c) .

Registration Rights ” means the rights of the Holders to cause Baxalta to Register Registrable Securities pursuant to Article II .

Registration Statement ” means any registration statement of Baxalta filed with, or as the context permits to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including post-effective amendments, and all exhibits and all material incorporated by reference into such registration statement. For the avoidance of doubt, it is acknowledged and agreed that such Registration Statement may be on any form that shall be applicable, including Form S-1, Form S-3 or Form S-4 and may be a Shelf Registration Statement.

Retained Shares ” has the meaning set forth in the recitals.

Sale ” means the direct or indirect transfer, sale, assignment or other disposition of a security. The terms “ Sell ” and “ Sold ” shall have correlative meanings.

SEC ” means the U.S. Securities and Exchange Commission.

Securities Act ” means the U.S. Securities Act of 1933, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

Separation and Distribution Agreement ” has the meaning set forth in the recitals.

 

-5-


Shelf Registration Statement ” means a Registration Statement of Baxalta for an offering of Registrable Securities to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (or similar provisions then in effect).

Subsequent Transferee ” has the meaning set forth in Section 4.06(b) .

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (x) the total combined voting power of all classes of voting securities of such Person, (y) the total combined equity interests or (z) the capital or profit interests, in the case of a partnership, or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

Transferee ” has the meaning set forth in Section 4.06(b) .

Underwritten Offering ” means a Registration in which Registrable Securities are Sold to an underwriter or underwriters on a firm commitment basis for reoffering to the public.

Section 1.02 Interpretation .

In this Agreement, unless the context clearly indicates otherwise:

(a) words used in the singular include the plural, and words used in the plural include the singular;

(b) references to any Person include such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and a reference to such Person’s “Affiliates” or “Subsidiaries” shall be deemed to mean such Person’s Affiliates or Subsidiaries, as applicable, following the Distribution;

(c) any reference to any gender includes the other gender and the neuter;

(d) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;

(e) the words “shall” and “will” are used interchangeably and have the same meaning;

(f) the word “or” shall have the inclusive meaning represented by the phrase “and/or”;

(g) any reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;

 

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(h) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision of this Agreement;

(i) any reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;

(j) any reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;

(k) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”;

(l) the table of contents and titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;

(m) any portion of this Agreement obligating a party to take any action or refrain from taking any action, as the case may be, shall mean that such party shall also be obligated to cause its relevant Subsidiaries to take such action or refrain from taking such action, as the case may be;

(n) the language of this Agreement shall be deemed to be the language the parties hereto have chosen to express their mutual intent, and no rule of strict construction shall be applied against any party; and

(o) except as otherwise indicated, all periods of time referred to herein shall include all Saturdays, Sundays and holidays; provided , however that if the date to perform the act or give any notice with respect to this Agreement shall fall on a day other than a Business Day, such act or notice may be performed or given timely if performed or given on the next succeeding Business Day.

ARTICLE II

Registration Rights

Section 2.01 Registration .

(a) Prior to the fifth anniversary of the Distribution Date, any Holder(s) of 10% or more of the then outstanding Registrable Securities (and any Holders acting together which collectively hold 10% or more of the then outstanding Registrable Securities) (collectively, the “ Initiating Holder ”; provided that the 10% ownership threshold shall not apply to any Holder that is a member of the Baxter Group) shall have the right to request that Baxalta file a Registration Statement, on behalf of itself or, in the case of the Baxter Group, on behalf of the Participating Banks, with the SEC on the appropriate registration form for all or part of the Registrable Securities held

 

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by such Initiating Holder, by delivering a written request thereof to Baxalta specifying the number of shares of Registrable Securities such Initiating Holder wishes to register (a “ Demand Registration ”). Baxalta shall (i) within five days of the receipt of a Demand Registration, give written notice of such Demand Registration to all Holders of Registrable Securities, (ii) use its reasonable best efforts to prepare and file the Registration Statement as expeditiously as possible but in any event within 30 days of such request, and (iii) use its reasonable best efforts to cause the Registration Statement to become effective in respect of each Demand Registration in accordance with the intended method of distribution set forth in the written request delivered by the Initiating Holder. Baxalta shall include in such Registration all Registrable Securities with respect to which Baxalta receives, within the 10 days immediately following the receipt by the Holder(s) of such notice from Baxalta, a request for inclusion in the Registration from the Holder(s) thereof. Each such request from a Holder of Registrable Securities for inclusion in the Registration shall also specify the aggregate amount of Registrable Securities proposed to be Registered. The Initiating Holder may request that the Registration Statement be on any appropriate form, including Form S-4 in the case of an Exchange Offer or a Shelf Registration Statement, and Baxalta shall effect the Registration on the form so requested.

(b) The Holder(s) may collectively make a total of five Demand Registration requests pursuant to Section 2.01(a) (including any exercise of rights to Demand Registration transferred pursuant to Section 4.06 and including any exercise of rights to Demand Registration made pursuant to any registration rights agreement entered into pursuant to Section 2.05 ); provided that the Holder(s) may not make more than two Demand Registration requests in any 365-day period. In addition, and notwithstanding anything to the contrary, the Baxter Group shall be permitted on a one-time basis to engage in up to four Private Exchanges within any nine-month period during the first twenty-four months following the date hereof, and all Demand Registration requests made by the Participating Banks in such Private Exchanges pursuant to one or more registration rights agreements with Baxalta pursuant to Section 2.05 shall collectively count only as one Demand Registration request (with such request date deemed to be the date of the first of the requests made pursuant to the applicable Private Exchanges) for purposes of the limitation on the number of Demand Registration requests set forth in the first sentence of this Section 2.01(b) (it being understood that the Baxter Group shall be permitted to engage in additional Private Exchanges outside such nine-month period, but each Demand Registration request by the Participating Banks for such Private Exchange pursuant to its registration rights agreement with Baxalta pursuant to Section 2.05 shall count as an additional Demand Registration request for purposes of the limitation on the number of Demand Registration requests set forth in the first sentence of this Section 2.01(b) ).

(c) Baxalta shall be deemed to have effected a Registration for purposes of this Section 2.01 if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC and remains effective until the earlier of (i) the date when all Registrable Securities thereunder have been Sold and (ii) 60 days from the effective date of the Registration Statement (or from the date the applicable Prospectus is filed with the SEC if Baxalta is satisfying a request for a Demand Registration by filing a Prospectus under an effective Shelf Registration Statement) (the “ Registration Period ”). No Registration shall be deemed to have been effective if the conditions to closing specified in the underwriting agreement or dealer manager agreement, if any, entered into in connection with such Registration are not satisfied by reason of a wrongful act, misrepresentation or breach of such

 

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applicable underwriting agreement or dealer manager agreement by any member of the Baxalta Group. If during the Registration Period, such Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority or the need to update or supplement the Registration Statement, the Registration Period shall be extended on a day-for-day basis for any period in which the Holders) is unable to complete an offering as a result of such stop order, injunction or other order or requirement of the SEC or other Governmental Authority.

(d) With respect to any Registration Statement, whether filed or to be filed pursuant to this Agreement, if Baxalta shall reasonably determine, upon the advice of legal counsel, that maintaining the effectiveness of such Registration Statement or filing an amendment or supplement thereto (or, if no Registration Statement has yet been filed, filing such a Registration Statement) would require the public disclosure of material nonpublic information concerning any transaction or negotiations involving Baxalta or any of its consolidated Subsidiaries that would materially interfere with such transaction or negotiations (a “ Disadvantageous Condition ”), Baxalta may, for the shortest period reasonably practicable, and in any event for not more than 30 consecutive calendar days (a “ Blackout Period ”), notify the Holders whose offers and Sales of Registrable Securities are covered (or to be covered) by such Registration Statement (a “ Blackout Notice ”) that such Registration Statement is unavailable for use (or will not be filed as requested). Upon the receipt of any such Blackout Notice, the Holders shall forthwith discontinue use of the Prospectus contained in any effective Registration Statement; provided , that, if at the time of receipt of such Blackout Notice any Holder shall have Sold its Registrable Securities (or have signed a firm commitment underwriting agreement with respect to the purchase of such shares) and the Disadvantageous Condition is not of a nature that would require a post-effective amendment to the Registration Statement, then Baxalta shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities laws on the timely delivery of such Registrable Securities. When any Disadvantageous Condition as to which a Blackout Notice has been previously delivered shall cease to exist, Baxalta shall as promptly as reasonably practicable notify the Holders and take such actions in respect of such Registration Statement as are otherwise required by this Agreement. The effectiveness period for any Demand Registration for which Baxalta has given notice of a Blackout Period shall be increased by the length of time of such Blackout Period. Baxalta shall not impose, in any 365-day period, Blackout Periods lasting, in the aggregate, in excess of 60 calendar days. If Baxalta declares a Blackout Period with respect to a Demand Registration for a Registration Statement that has not yet been declared effective, (i) the Holders may by notice to Baxalta withdraw the related Demand Registration request without such Demand Registration request counting against the number of Demand Registration requests permitted to be made under Section 2.01(b) and (ii) the Holders shall not be responsible for any of Baxalta’s related Registration Expenses.

(e) If the Initiating Holder so indicates at the time of its request pursuant to Section 2.01(a), such offering of Registrable Securities shall be in the form of an Underwritten Offering or an Exchange Offer, and Baxalta shall include such information in the written notice to the Holders required under Section 2.01(a). In the event that the Initiating Holder intends to Sell the Registrable Securities by means of an Underwritten Offering or Exchange Offer, the right of any Holder to include Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such Underwritten Offering or Exchange Offer and the

 

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inclusion of such Holder’s Registrable Securities in the Underwritten Offering or the Exchange Offer to the extent provided herein. The Holders of a majority of the outstanding Registrable Securities being included in any Underwritten Offering or Exchange Offer shall select the underwriter(s) in the case of an Underwritten Offering or the dealer manager(s) in the case of an Exchange Offer, provided that such underwriter(s) or dealer manager(s) are reasonably acceptable to Baxalta. Baxalta shall be entitled to designate counsel for such underwriter(s) or dealer manager(s) (subject to their approval), provided that such designated underwriters’ counsel shall be a firm of national reputation representing underwriters or dealer managers in capital markets transactions.

(f) If the managing underwriter or underwriters of a proposed Underwritten Offering of Registrable Securities included in a Registration pursuant to this Section 2.01 inform(s) in writing the Holders participating in such Registration that, in its or their opinion, the number of securities requested to be included in such Registration exceeds the number that can be Sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the number of Registrable Securities to be included in such Registration shall be reduced to the maximum number recommended by the managing underwriter or underwriter and allocated pro rata among the Holders, including the Initiating Holder, in proportion to the number of Registrable Securities each Holder has requested to be included in such Registration; provided, that the Initiating Holder may notify Baxalta in writing that the Registration Statement shall be abandoned or withdrawn, in which event Baxalta shall abandon or withdraw such Registration Statement. In the event the Initiating Holder notifies Baxalta that such Registration Statement shall be abandoned or withdrawn, such Holder shall not be deemed to have requested a Demand Registration pursuant to Section 2.01(a ), and Baxalta shall not be deemed to have effected a Demand Registration pursuant to Section 2.01(b ). If the amount of Registrable Securities to be underwritten has not been limited in accordance with the first sentence of this Section 2.01(f) , Baxalta and the holders of Common Stock or, if the Registrable Securities include securities other than Common Stock, the holders of securities of the same class of those securities included in the Registrable Securities, in each case, other than the Holders (“ Other Holders ”), may include such securities for their own account or for the account of Other Holders in such Registration if the underwriter(s) so agree and to the extent that, in the opinion of such underwriter(s), the inclusion of such additional amount will not adversely affect the offering of the Registrable Securities included in such Registration.

Section 2.02 Piggyback Registrations .

(a) Prior to the earlier to occur of the fifth anniversary of the Distribution Date or the date on which the Registrable Securities then held by the Holder(s) represents less than 1% of Baxalta’s then-issued and outstanding Common Stock (or, if the Registrable Securities include securities other than Common Stock, less than 1% of Baxalta’s then-issued and outstanding securities of the same class as the securities included in the Registrable Securities), if Baxalta proposes to file a Registration Statement (other than a Shelf Registration) or a Prospectus supplement filed pursuant to a Shelf Registration Statement under the Securities Act with respect to any offering of such securities for its own account and/or for the account of any Other Holders (other than (i) a Registration under Section 2.01 , (ii) a Registration pursuant to a Registration Statement on Form S-8 or Form S-4 or similar form that relates to a transaction subject to Rule

 

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145 under the Securities Act, (iii) any form that does not include substantially the same information, other than information relating to the selling holders or their plan of distribution, as would be required to be included in a Registration Statement covering the sale of the Registrable Securities, (iv) in connection with any dividend reinvestment or similar plan, (v) for the sole purpose of offering securities to another entity or its security holders in connection with the acquisition of assets or securities of such entity or any similar transaction or (vi) a Registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered) (a “ Baxalta Public Sale ”), then, as soon as practicable, but in any event not less than 15 days prior to the proposed date of filing such Registration Statement, Baxalta shall give written notice of such proposed filing to each Holder, and such notice shall offer such Holders the opportunity to Register under such Registration Statement such number of Registrable Securities as each such Holder may request in writing (a “ Piggyback Registration ”). Subject to Section 2.02(b) and Section 2.02(c) , Baxalta shall use its commercially reasonable efforts to include in a Registration Statement with respect to a Baxalta Public Sale all Registrable Securities that are requested to be included therein within five Business Days after the receipt of any such notice; provided , however , that if, at any time after giving written notice of its intention to Register any securities and prior to the effective date of the Registration Statement filed in connection with such Registration, Baxalta shall determine for any reason not to Register or to delay Registration of the Baxalta Public Sale, Baxalta may, at its election, give written notice of such determination to each such Holder and, thereupon, (x) in the case of a determination not to Register, shall be relieved of its obligation to Register any Registrable Securities in connection with such Registration, without prejudice, however, to the rights of any Holder to request that such Registration be effected as a Demand Registration under Section 2.01 and (y) in the case of a determination to delay Registration, shall be permitted to delay Registering any Registrable Securities for the same period as the delay in Registering such other shares of Common Stock in the Baxalta Public Sale. No Registration effected under this Section 2.02 shall relieve Baxalta of its obligation to effect any Demand Registration under Section 2.01 . For purposes of clarification, Baxalta’s filing of a Shelf Registration Statement shall not be deemed to be a Baxalta Public Sale; provided, however , that any prospectus supplement filed pursuant to a Shelf Registration Statement with respect to an offering of Baxalta’s Common Stock for its own account and/or for the account of any other Persons will be a Baxalta Public Sale unless such offering qualifies for an exemption from the Baxalta Public Sale definition in this Section 2.02(a) .

(b) In the case of any Underwritten Offering, each Holder shall have the right to withdraw such Holder’s request for inclusion of its Registrable Securities in such Underwritten Offering pursuant to Section 2.02(a) at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to Baxalta of such Holder’s request to withdraw and, subject to the preceding clause, each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from a Piggyback Registration at any time prior to the effective date thereof.

(c) If the managing underwriter or underwriters of any proposed Underwritten Offering of a class of Registrable Securities included in a Piggyback Registration informs Baxalta and each Holder in writing that, in its or their opinion, the number of securities of such class that such Holder and any other Persons intend to include in such offering exceeds the number that can be Sold in such offering without being likely to have an adverse effect on the

 

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price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such Registration shall be (i) first, all securities of Baxalta and any other Persons (other than Baxalta’s executive officers and directors) for whom Baxalta is effecting the Registration, as the case may be, proposes to Sell, (ii) second, the number, if any, of Registrable Securities of such class that, in the opinion of such managing underwriter or underwriters, can be Sold without having such adverse effect, with such number to be allocated pro rata among the Holders that have requested to participate in such Registration based on the relative number of Registrable Securities of such class requested by such Holder to be included in such Sale, (iii) third, the number of securities of executive officers and directors of Baxalta for whom Baxalta is effecting the Registration, as the case may be, with such number to be allocated pro rata among the executive officers and directors and (iv) fourth, any other securities eligible for inclusion in such Registration, allocated among the holders of such securities in such proportion as Baxalta and those holders may agree.

(d) After a Holder has been notified of its opportunity to include Registrable Securities in a Piggyback Registration, such Holder (i) shall treat the Offering Confidential Information as confidential information, (ii) shall not use any Offering Confidential Information for any purpose other than to evaluate whether to include its Registrable Securities (or other shares of Common Stock) in such Piggyback Registration and (iii) shall not disclose any Offering Confidential Information to any Person other than such of its agents, employees, advisors and counsel as have a need to know such Offering Confidential Information, and to cause such agents, employees, advisors and counsel to comply with the requirements of this Section 2.02(d) ; provided , that any such Holder may disclose Offering Confidential Information if such disclosure is required by legal process, but such Holder shall cooperate with Baxalta to limit the extent of such disclosure through protective order or otherwise, and to seek confidential treatment of the Offering Confidential Information.

Section 2.03 Registration Procedures .

(a) In connection with Baxalta’s Registration obligations under Section 2.01 and Section 2.02 , Baxalta shall use its reasonable best efforts to effect such Registration to permit the offer and Sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable, and in connection therewith, Baxalta shall, and shall cause the members of the Baxalta Group to:

(i) prepare and file the required Registration Statement, including all exhibits and financial statements and, in the case of an Exchange Offer, any document required under Rule 425 or Rule 165 with respect to such Exchange Offer (collectively, the “ Ancillary Filings ”) required under the Securities Act to be filed therewith, and before filing with the SEC a Registration Statement or Prospectus, or any amendments or supplements thereto, (A) furnish to the underwriters or dealer managers, if any, and to the Holders, copies of all documents prepared to be filed, which documents shall be subject to the review and comment of such underwriters or dealer managers and such Holders and their respective counsel, and provide such underwriters or dealers managers, if any, and such Holders and their respective counsel reasonable time to review and comment thereon and (B) not file with the SEC any Registration Statement or Prospectus or amendments or supplements thereto or any Ancillary Filing to which the Holders or the underwriters or dealer managers, if any, shall reasonably object;

 

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(ii) prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement and supplements to the Prospectus and any Ancillary Filing as may be reasonably requested by the participating Holders;

(iii) promptly notify the participating Holders and the managing underwriters or dealer managers, if any, and, if requested, confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by any member of the Baxalta Group (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, or any Ancillary Filing has been filed, (B) of any comments (written or oral) by the SEC or any request (written or oral) by the SEC or any other Governmental Authority for amendments or supplements to such Registration Statement, such Prospectus or any Ancillary Filing, or for any additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement, any order preventing or suspending the use of any preliminary or final Prospectus or any Ancillary Filing, or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties (written or oral) in any applicable underwriting agreement or dealer manager agreement cease to be true and correct in all material respects and (E) of the receipt by any member of the Baxalta Group of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or Sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

(iv) (A) promptly notify each participating Holder and the managing underwriter(s) or dealer manager(s), if any, when Baxalta becomes aware of the occurrence of any event as a result of which the applicable Registration Statement, the Prospectus included in such Registration Statement (as then in effect) or any Ancillary Filing contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading, or if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement, Prospectus or any Ancillary Filing in order to comply with the Securities Act, and (B) in either case, as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to each participating Holder and the underwriter(s) or dealer manager(s), if any, an amendment or supplement to such Registration Statement, Prospectus or Ancillary Filing that will correct such statement or omission or effect such compliance;

(v) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;

 

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(vi) promptly (A) incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter(s) or dealer manager(s), if any, and the Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities and (B) make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;

(vii) furnish to each participating Holder and each underwriter or dealer manager, if any, without charge, as many conformed copies as such Holder or underwriter or dealer manager may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, but excluding all documents and exhibits (i) incorporated therein by reference or (ii) that are available via the SEC’s EDGAR system;

(viii) deliver to each participating Holder and each underwriter or dealer manager, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter or dealer manager may reasonably request (it being understood that Baxalta consents to the use of such Prospectus or any amendment or supplement thereto by each participating Holder and the underwriter(s) or dealer manager(s), if any, in connection with the offering and Sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such participating Holder or underwriter or dealer manager may reasonably request in order to facilitate the Sale of the Registrable Securities by such Holder or underwriter or dealer manager;

(ix) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each participating Holder, the managing underwriter(s) or dealer manager(s), if any, and their respective counsel, in connection with the registration or qualification of, such Registrable Securities for offer and Sale under the securities or “blue sky” laws of each state and other jurisdiction of the United States as any participating Holder or managing underwriter(s) or dealer manager(s), if any, or their respective counsel reasonably request, and in any foreign jurisdiction mutually agreeable to Baxalta and the participating Holders, and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of offers and Sales and dealings in such jurisdictions for so long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that Baxalta will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject or conform its capitalization or the composition of its assets at the time to the securities or blue sky laws of any such jurisdiction;

(x) in connection with any Sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each participating Holder and the managing underwriter(s) or dealer manager(s), if any, to (A) facilitate the

 

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timely preparation and delivery of certificates representing Registrable Securities to be Sold and not bearing any restrictive Securities Act legends and (B) register such Registrable Securities in such denominations and such names as such participating Holder or the underwriter(s) or dealer manager(s), if any, may request at least two Business Days prior to such Sale of Registrable Securities; provided that Baxalta may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;

(xi) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and each securities exchange, if any, on which any of Baxalta’s securities are then listed or quoted and on each inter-dealer quotation system on which any of Baxalta’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter or dealer manager (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other Governmental Authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s) or dealer manager(s), if any, to consummate the Sale of such Registrable Securities;

(xii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with the Depository Trust Company; provided, that Baxalta may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;

(xiii) obtain for delivery to and addressed to each participating Holder and to the underwriter(s) or dealer manager(s), if any, opinions from the general counsel or deputy general counsel for Baxalta, in each case dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement or, in the event of an Exchange Offer, the date of the closing under the dealer manager agreement or similar agreement or otherwise, and in each such case in customary form and content for the type of Underwritten Offering or Exchange Offer, as applicable;

(xiv) in the case of an Underwritten Offering or Exchange Offer, obtain for delivery to and addressed to Baxalta and the managing underwriter(s) or dealer manager(s), if any, and, to the extent requested, each participating Holder, a cold comfort letter from Baxalta’s independent registered public accounting firm in customary form and content for the type of Underwritten Offering or Exchange Offer, dated the date of execution of the underwriting agreement or dealer manager agreement or, if none, the date of commencement of the Exchange Offer, and brought down to the closing, whether under the underwriting agreement or dealer manager agreement, if applicable, or otherwise;

 

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(xv) in the case of an Exchange Offer that does not involve a dealer manager, provide to each participating Holder such customary written representations and warranties or other covenants or agreements as may be requested by any participating Holder comparable to those that would be included in an underwriting or dealer manager agreement;

(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but in any event no later than 90 days, after the end of the 12-month period beginning with the first day of Baxalta’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the Registration Statement;

(xvii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

(xviii) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of Baxalta’s securities are then listed or quoted and on each inter-dealer quotation system on which any of Baxalta’s securities are then quoted;

(xix) provide (A) each Holder participating in the Registration, (B) the underwriters (which term, for purposes of this Agreement, shall include any Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be registered, (C) the Sale or placement agent therefor, if any, (D) the dealer manager therefor, if any, (E) counsel for such Holder, underwriters, agent, or dealer manager and (F) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter or dealer manager, as selected by such Holder, in each case, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto; and for a reasonable period prior to the filing of such Registration Statement, upon execution of a customary confidentiality agreement, make available for inspection upon reasonable notice at reasonable times and for reasonable periods, by the parties referred to in clauses (A) through (F) above, all pertinent financial and other records, pertinent corporate and other documents and properties of the Baxalta Group that are available to Baxalta, and cause all of the Baxalta Group’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods to discuss the business of Baxalta and to supply all information available to Baxalta reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence or other responsibility, subject to the foregoing; provided , that in no event shall any member of the Baxalta Group be required to make available any information which the Board determines in good faith to be competitively sensitive or confidential.

 

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The recipients of such information shall coordinate with one another so that the inspection permitted hereunder will not unnecessarily interfere with the Baxalta Group’s conduct of business. Each Holder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of Baxalta or its Affiliates unless and until such information is made generally available to the public by Baxalta or such Affiliate or for any reason not related to the Registration of Registrable Securities;

(xx) in the case of an Underwritten Offering or Exchange Offer registering 25% or more of the Retained Shares, cause the senior executive officers of Baxalta to participate at reasonable times and for reasonable periods in the customary “road show” presentations that may be reasonably requested by the managing underwriter(s) or dealer manager(s), if any, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, except to the extent that such participation materially interferes with the management of Baxalta’s business; provided that the effectiveness period for any Demand Registration shall be increased on a day-for-day basis by the period of time that management cannot participate;

(xxi) comply with all requirements of the Securities Act, Exchange Act and other applicable laws, rules and regulations, as well as all applicable stock exchange rules; and

(xxii) take all other customary steps reasonably necessary or advisable to effect the Registration and distribution of the Registrable Securities contemplated hereby.

(b) As a condition precedent to any Registration hereunder, Baxalta may require each Holder as to which any Registration is being effected to furnish to Baxalta such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities and other matters as Baxalta may from time to time reasonably request in writing. Each such Holder agrees to furnish such information to Baxalta and to cooperate with Baxalta as reasonably necessary to enable Baxalta to comply with the provisions of this Agreement.

(c) Each Holder shall, as promptly as reasonably practicable, notify Baxalta, at any time when a Prospectus is required to be delivered (or deemed delivered) under the Securities Act, of the occurrence of an event, of which such Holder has knowledge, relating to such Holder or its Sale of Registrable Securities thereunder requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered (or deemed delivered) to the purchasers of such Registrable Securities, such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

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(d) Baxter agrees (on behalf of itself and each member of the Baxter Group), and any other Holder agrees by acquisition of such Registrable Securities, that, upon receipt of any written notice from Baxalta of the occurrence of any event of the kind described in Section 2.03(a)(iv) such Holder will forthwith discontinue Sale of Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.03(a)(iv) , or until such Holder is advised in writing by Baxalta that the use of the Prospectus may be resumed, and if so directed by Baxalta, such Holder will deliver to Baxalta, at Baxalta’s expense, all copies of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event Baxalta shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice through the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus contemplated by Section 2.03(a)(iv) or is advised in writing by Baxalta that the use of the Prospectus may be resumed.

Section 2.04 Underwritten Offerings or Exchange Offers .

(a) If requested by the managing underwriter(s) for any Underwritten Offering or dealer manager(s) for any Exchange Offer that is requested by Holders pursuant to a Demand Registration under Section 2.01 , Baxalta shall enter into an underwriting agreement or dealer manager agreement, as applicable, with such underwriter(s) or dealer manager(s) for such offering, such agreement to be reasonably satisfactory in substance and form to Baxalta and the underwriter(s) or dealer manager(s) and, if Baxter Group is a participating Holder, to Baxter Group. Such agreement shall contain such representations and warranties by Baxalta and such other terms as are generally prevailing in agreements of that type. Each Holder with Registrable Securities to be included in any Underwritten Offering or Exchange Offer by such underwriter(s) or dealer manager(s) shall enter into such underwriting agreement or dealer manager agreement at the request of Baxalta, which agreement shall contain such reasonable representations and warranties by the Holder and such other reasonable terms as are generally prevailing in agreements of that type.

(b) In the event of a Baxalta Public Sale involving an offering of Common Stock or other equity securities of Baxalta in an Underwritten Offering (whether in a Demand Registration or a Piggyback Registration, whether or not the Holders participate therein), the Holders hereby agree, and, in the event of a Baxalta Public Sale of Common Stock or other equity securities of Baxalta in an Underwritten Offering or an Exchange Offer, Baxalta shall agree, and it shall cause its executive officers and directors to agree, if requested by the managing underwriter or underwriters in such Underwritten Offering or by the Holder or the dealer manager or dealer managers, in an Exchange Offer, not to effect any Sale or distribution (including any offer to Sell, contract to Sell, short Sale or any option to purchase) of any securities (except, in each case, as part of the applicable Registration, if permitted hereunder) that are of the same type as those being Registered in connection with such public offering and Sale, or any securities convertible into or exchangeable or exercisable for such securities, during the period beginning five days before, and ending 90 days (or such lesser period as may be permitted by Baxalta or the participating Holder(s), as applicable, or such managing underwriter or underwriters) after, the effective date of the Registration Statement filed in connection with such Registration (or, if later, the date of the Prospectus), to the extent timely notified in writing by such selling Person or the managing underwriter or underwriters or dealer manager or dealer managers. The participating Holders and Baxalta, as applicable, also agree to execute an

 

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agreement evidencing the restrictions in this Section 2.04(b ) in customary form, which form is reasonably satisfactory to Baxalta or the participating Holder(s), as applicable, and the underwriter(s) or dealer manager(s), as applicable; provided that such restrictions may be included in the underwriting agreement or dealer manager agreement, if applicable. Baxalta may impose stop-transfer instructions with respect to the securities subject to the foregoing restriction until the end of the required stand-off period.

(c) No Holder may participate in any Underwritten Offering or Exchange Offer hereunder unless such Holder (i) agrees to Sell such Holder’s securities on the basis provided in any underwriting arrangements or dealer manager agreements approved by Baxalta or other Persons entitled to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, dealer manager agreements and other documents reasonably required under the terms of such underwriting arrangements or dealer manager agreements or this Agreement.

Section 2.05 Registration Rights Agreement with Participating Banks .

If one or more members of the Baxter Group decides to engage in a Private Exchange with one or more Participating Banks, Baxalta shall enter into a registration rights agreement with the Participating Banks in connection with such Private Exchange on terms and conditions consistent with this Agreement (other than the voting provisions contained in Article III hereof) and reasonably satisfactory to Baxalta and the Baxter Group.

Section 2.06 Registration Expenses Paid by Baxalta .

In the case of any Registration of Registrable Securities required pursuant to this Agreement, Baxalta shall pay all Registration Expenses regardless of whether the Registration Statement becomes effective; provided , however , that Baxalta shall not be required to pay for any expenses of any Registration begun pursuant to Section 2.01 if the Demand Registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be Registered (in which case all participating Holders shall bear such expenses), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one Demand Registration to which they have the right pursuant to Section 2.01(b) .

Section 2.07 Indemnification .

(a) Baxalta agrees to indemnify and hold harmless, to the full extent permitted by law, each Holder whose shares are included in a Registration Statement, such Holder’s Affiliates and their respective officers, directors, agents, advisors, employees and each Person, if any, who controls (within the meaning of the Securities Act or the Exchange Act) such Holder, from and against any and all losses, claims, damages, liabilities (or actions or proceedings in respect thereof, whether or not such indemnified party is a party thereto) and expenses, joint or several (including reasonable costs of investigation and legal expenses) (each, a “ Loss ” and collectively “ Losses ”) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the offering and Sale of such Registrable Securities was Registered under the Securities Act (including any final or preliminary Prospectus contained therein or any amendment thereof or supplement thereto or any

 

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documents incorporated by reference therein), or any such statement made in any free writing prospectus (as defined in Rule 405 under the Securities Act) that Baxalta has filed or is required to file pursuant to Rule 433(d) of the Securities Act or any Ancillary Filing, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or free writing prospectus, in light of the circumstances under which they were made) not misleading; provided, that with respect to any untrue statement or omission or alleged untrue statement or omission made in any Prospectus, the indemnity agreement contained in this paragraph shall not apply to the extent that any such liability or Loss results from or arises out of (A) the fact that a current copy of the Prospectus was not sent or given to the Person asserting any such liability at or prior to the written confirmation of the Sale of the Registrable Securities concerned to such Person if it is determined by a court of competent jurisdiction in a final and non-appealable judgment that Baxalta has provided such Prospectus and it was the responsibility of such Holder or its agents to provide such Person with a current copy of the Prospectus and such current copy of the Prospectus would have cured the defect giving rise to such liability, (B) the use of any Prospectus by or on behalf of any Holder after Baxalta has notified such Person (x) that such Prospectus contains an untrue statement of a material fact or omits 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, (y) that a stop order has been issued by the SEC with respect to a Registration Statement or (z) that a Disadvantageous Condition exists, or (C) information furnished in writing by such Holder or on such Holder’s behalf, in either case expressly for use in such Registration Statement, Prospectus, free writing prospectus or Ancillary Filing relating to such Holder’s Registrable Securities. This indemnity shall be in addition to any liability Baxalta may otherwise have, including under the Separation and Distribution Agreement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the Sale of such securities by such Holder.

(b) Each participating Holder whose Registrable Securities are included in a Registration Statement agrees (severally and not jointly) to indemnify and hold harmless, to the full extent permitted by law, Baxalta, its directors, officers, agents, advisors, employees and each Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) Baxalta from and against any and all Losses (i) arising out of or based upon information furnished in writing by such Holder or on such Holder’s behalf, in either case expressly for use in a Registration Statement, Prospectus, free writing prospectus or Ancillary Filing relating to such Holder’s Registrable Securities or (ii) resulting from (A) the fact that a current copy of the Prospectus was not sent or given to the Person asserting any such liability at or prior to the written confirmation of the Sale of the Registrable Securities concerned to such Person if it is determined by a court of competent jurisdiction in a final and non-appealable judgment that it was the responsibility of such Holder or its agent to provide such Person with a current copy of the Prospectus and such current copy of the Prospectus would have cured the defect giving rise to such liability, or (B) the use of any Prospectus by or on behalf of any Holder after Baxalta has notified such Person (x) that such Prospectus contains an untrue statement of a material fact or omits 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, (y) that a stop order has been issued by the SEC with respect to a Registration Statement or (z) that a Disadvantageous Condition exists. This indemnity shall be in addition to any liability the

 

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participating Holder may otherwise have, including under the Separation and Distribution Agreement. In no event shall the liability of any participating Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such holder under the Sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of Baxalta or any indemnified party.

(c) Any claim or action with respect to which a party (an “ Indemnifying Party ”) may be obligated to provide indemnification to any Person entitled to indemnification hereunder (an “ Indemnitee ”) shall be subject to the procedures for indemnification set forth in Article IV of the Separation and Distribution Agreement.

(d) If for any reason the indemnification provided for in Section 2.07(a) or Section 2.07(b) is unavailable to an Indemnitee or insufficient to hold it harmless as contemplated by Section 2.07(a) or Section 2.07(b) , then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnitee as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnitee on the other hand. 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 Indemnifying Party or the Indemnitee and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. For the avoidance of doubt, the establishment of such relative fault, and any disagreements or disputes relating thereto, shall be subject to Section 4.03 . Notwithstanding anything in this Section 2.07(d) to the contrary, no Indemnifying Party (other than Baxalta) shall be required pursuant to this Section 2.07(d) to contribute any amount in excess of the amount by which the net proceeds received by such Indemnifying Party from the Sale of Registrable Securities in the offering to which the Losses of the Indemnitees relate (before deducting expenses, if any) exceeds the amount of any damages which such Indemnifying Party has otherwise been required to pay by reason of such untrue statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.07(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.07(d). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The amount paid or payable by an Indemnitee hereunder shall be deemed to include, for purposes of this Section 2.07(d) , any legal or other expenses reasonably incurred by such Indemnitee in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. If indemnification is available under this Section 2.07 , the Indemnifying Parties shall indemnify each Indemnitee to the full extent provided in Section 2.07(a) and Section 2.07(b) without regard to the relative fault of said Indemnifying Parties or Indemnitee. Any Holders’ obligations to contribute pursuant to this Section 2.07(d) are several and not joint.

 

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Section 2.08 Reporting Requirements; Rule 144 .

Until the earlier of (a) the expiration or termination of this Agreement in accordance with its terms and (b) the date upon which the Baxter Group ceases to own any Registrable Securities, Baxalta shall use its commercially reasonable efforts to be and remain in compliance with the periodic filing requirements imposed under the SEC’s rules and regulations, including the Exchange Act, and any other applicable laws or rules, and thereafter shall timely file such information, documents and reports as the SEC may require or prescribe under Sections 13, 14 and 15(d), as applicable, of the Exchange Act so that Baxalta will qualify for registration on Form S-3 and to enable the Baxter Group to Sell Registrable Securities without registration under the Securities Act consistent with the exemptions from registration under the Securities Act provided by (i) Rule 144 or Regulation S under the Securities Act, as amended from time to time, or (ii) any similar SEC rule or regulation then in effect. From and after the date hereof through the earlier of the expiration or termination of this Agreement in accordance with its terms and the date upon which the Baxter Group ceases to own any Registrable Securities, Baxalta shall forthwith upon request furnish any Holder (x) a written statement by Baxalta as to whether it has complied with such requirements and, if not, the specifics thereof, (y) a copy of the most recent annual or quarterly report of Baxalta and (z) such other reports and documents filed by Baxalta with the SEC as such Holder may reasonably request in availing itself of an exemption for the offering and Sale of Registrable Securities without registration under the Securities Act.

Section 2.09 Registration Rights Covenant .

Baxalta covenants that it will not, and it will cause the members of the Baxalta Group not to, grant any right of registration under the Securities Act relating to any of its shares of Common Stock or other securities to any Person other than pursuant to this Agreement, unless the rights so granted to another Person do not limit or restrict the right of the Holder(s) hereunder.

ARTICLE III

Voting Restrictions

Section 3.01 Voting of Baxalta Common Stock .

(a) From the date of this Agreement and until the date that the Baxter Group ceases to own any Retained Shares, Baxter shall, and shall cause each member of the Baxter Group to (in each case, to the extent that they own any Retained Shares), be present, in person or by proxy, at each and every Baxalta shareholder meeting, and otherwise to cause all Retained Shares owned by them to be counted as present for purposes of establishing a quorum at any such meeting, and to vote or consent on any matter (including waivers of contractual or statutory rights), or cause to be voted or consented on any such matter, all such Retained Shares in proportion to the votes cast by the other holders of Common Stock on such matter.

(b) From the date of this Agreement and until the date that the Baxter Group ceases to own any Retained Shares, Baxter hereby grants, and shall cause each member of the Baxter Group (in each case, to the extent that they own any Retained Shares) to grant, an irrevocable proxy, which shall be deemed coupled with an interest sufficient in law to support an irrevocable proxy to Baxalta or its designees, to vote, with respect to any matter (including waivers of

 

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contractual or statutory rights), all Retained Shares owned by them, in proportion to the votes cast by the other holders of Common Stock on such matter; provided that (i) such proxy shall automatically be revoked as to a particular Retained Share upon any Sale of such Retained Share from a member of the Baxter Group to a Person other than a member of the Baxter Group and (ii) nothing in this Section 3.01(b) shall limit or prohibit any such Sale.

(c) Baxter acknowledges and agrees (on behalf of itself and each member of the Baxter Group) that Baxalta will be irreparably damaged in the event any of the provisions of this Article III are not performed by Baxter in accordance with their terms or are otherwise breached. Accordingly, it is agreed that Baxalta shall be entitled to an injunction to prevent breaches of this Article III and to specific enforcement of the provisions of this Article III in any action instituted in any court of the United States or any state having subject matter jurisdiction over such action.

ARTICLE IV

Miscellaneous

Section 4.01 Term .

This Agreement shall terminate upon the earlier of (a) five years after the Distribution Date, (b) the time at which all Registrable Securities are held by Persons other than Holders and (c) the time at which all Registrable Securities have been Sold in accordance with one or more Registration Statements; provided , that the provisions of Section 2.06 and Section 2.07 and this Article IV shall survive any such termination.

Section 4.02 Counterparts; Entire Agreement; Corporate Power .

(a) This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and delivered to each other party.

(b) This Agreement and the exhibit hereto contain the entire agreement between the parties with respect to the subject matter hereof, supersedes all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the parties with respect to such subject matter other than those set forth or referred to herein.

(c) Baxter represents on behalf of itself and each other member of the Baxter Group, and Baxalta represents on behalf of itself and each other member of the Baxalta Group, as follows: (i) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and (ii) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms hereof.

(d) Each party hereto acknowledges that it and each other party hereto may execute this Agreement by facsimile, stamp or mechanical signature. Each party hereto expressly adopts and confirms each such facsimile, stamp or mechanical signature made in its respective name as

 

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if it were a manual signature, agrees that it shall not assert that any such signature is not adequate to bind such party to the same extent as if it were signed manually and agrees that at the reasonable request of any other party hereto at any time it shall as promptly as reasonably practicable cause this Agreement to be manually executed (any such execution to be as of the date of the initial date thereof).

Section 4.03 Disputes .

(a) Any dispute, controversy or claim arising out of or relating to this Agreement, including the validity, interpretation, breach or termination hereof (a “ Dispute ”), shall be resolved in accordance with the procedures set forth in Article VII of the Separation and Distribution Agreement, which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified in this Agreement or in Article VII of the Separation and Distribution Agreement; provided that the initial discussions and negotiations with respect to any such Dispute shall occur at the Transition Committee (as defined in the Separation and Distribution Agreement) without the requirement for the preceding steps described in Article VII of the Separation and Distribution Agreement.

(b) This Agreement (and any claims or disputes arising out of or related hereto or to the transactions contemplated hereby or to the inducement of any party to enter herein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware, including all matters of validity, construction, effect, enforceability, performance and remedies.

(c) THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.

Section 4.04 Amendment .

No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by any party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of Baxalta, if such waiver, amendment, supplement or modification is sought to be enforced against Baxalta, or the Holders of a majority of the Registrable Securities, if such waiver, amendment, supplement or modification is sought to be enforced against a Holder.

Section 4.05 Waiver of Default .

Waiver by any party of any default by the other party of any provision of this Agreement shall not be deemed a waiver by the waiving party of any subsequent or other default, nor shall it prejudice the rights of such party. No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege.

 

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Section 4.06 Successors, Assigns and Transferees .

(a) This Agreement and all provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Baxalta may assign this Agreement to any member of the Baxalta Group or at any time in connection with a sale or acquisition of Baxalta, whether by merger, consolidation, sale of all or substantially all of Baxalta’s assets, or similar transaction, without the consent of the Holders; provided , that the successor or acquiring Person agrees in writing to assume all of Baxalta’s rights and obligations under this Agreement. Baxter may assign this Agreement to any member of the Baxter Group or at any time in connection with a sale or acquisition of Baxter, whether by merger, consolidation, sale of all or substantially all of Baxter’s assets, or similar transaction, without the consent of Baxalta.

(b) In connection with the Sale of Registrable Securities, Baxter may assign its Registration-related rights and obligations under this Agreement relating to such Registrable Securities to the following transferees in such Sale: (i) a member of the Baxter Group to which Registrable Securities are Sold, (ii) one or more Participating Banks to which Registrable Securities are Sold, (iii) the Baxter International Inc. and Subsidiaries Pension Plan or any other defined benefit plan of which Baxter is the sponsor to which Registrable Securities are Sold, (iv) any other transferee to which Registrable Securities are Sold, if Baxalta provides prior written consent to the transfer of such Registration-related rights and obligations along with the Sale of Registrable Securities or (v) any other transferee to which Registrable Securities are Sold, unless such Sale consists of Registrable Securities representing less than 1% of Baxalta’s then-issued and outstanding securities of the same class as the Registrable Securities and such Registrable Securities are eligible for Sale pursuant to an exemption from the registration and prospectus delivery requirements of the Securities Act under Section 4(a) thereof (including transactions pursuant to Rule 144); provided , that in the case of clauses (i), (ii), (iii), (iv) or (v), (x) Baxalta is given written notice prior to or at the time of such Sale stating the name and address of the transferee and identifying the securities with respect to which the Registration-related rights and obligations are being Sold and (y) the transferee executes a counterpart in the form attached hereto as Exhibit A and delivers the same to Baxalta (any such transferee in such Sale, a “ Transferee ”). In connection with the Sale of Registrable Securities, a Transferee or Subsequent Transferee (as defined below) may assign its Registration-related rights and obligations under this Agreement relating to such Registrable Securities to the following subsequent transferees: (A) an Affiliate of such Transferee to which Registrable Securities are Sold, (B) any subsequent transferee to which Registrable Securities are Sold, if Baxalta provides prior written consent to the transfer of such Registration-related rights and obligations along with the Sale of Registrable Securities or (C) any other subsequent transferee to which Registrable Securities are Sold, unless such Sale consists of Registrable Securities representing less than 1% of Baxalta’s then-issued and outstanding securities of the same class as the Registrable Securities and such Registrable Securities are eligible for Sale pursuant to an exemption from the registration and prospectus delivery requirements of the Securities Act under Section 4(a) thereof (including transactions pursuant to Rule 144); provided , that in the case of clauses (A), (B) or (C), (x) Baxalta is given written notice prior to or at the time of such Sale stating the name and address of the subsequent transferee and identifying the securities with respect to which the Registration-related rights and obligations are being assigned and (y) the subsequent transferee executes a counterpart in the form attached hereto as Exhibit A and delivers the same to Baxalta (any such subsequent transferee, a “ Subsequent Transferee ”).

 

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Section 4.07 Further Assurances .

In addition to the actions specifically provided for elsewhere in this Agreement, each of the parties hereto shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable on its part under applicable laws, regulations and agreements, to consummate and make effective the transactions contemplated by this Agreement.

Section 4.08 Performance .

Baxter shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement to be performed by any member of the Baxter Group. Baxalta shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement to be performed by any member of the Baxalta Group. Each party (including its permitted successors and assigns) further agrees that it shall (a) give timely notice of the terms, conditions and continuing obligations contained in this Section 4.08 to all of the other members of its Group and (b) cause all of the other members of its Group not to take, or omit to take, any action which action or omission would violate or cause such party to violate this Agreement.

Section 4.09 Notices .

All notices, requests, claims, demands or other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by e-mail (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in such communication):

If to Baxter, to:

Baxter International Inc.

One Baxter Parkway

Deerfield, Illinois 60015

Attention: General Counsel

E-mail: general_counsel@baxter.com

If to Baxalta, to:

Baxalta Incorporated

One Baxter Parkway

Deerfield, Illinois 60015

Attention: General Counsel

E-mail: general_counsel@baxter.com

Any party may, by notice to the other party, change the address and contact person to which any such notices are to be given.

 

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Section 4.10 Severability .

If any provision of this Agreement or the application hereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the parties.

Section 4.11 No Reliance on Other Party .

The parties hereto represent to each other that this Agreement is entered into with full consideration of any and all rights which the parties hereto may have. The parties hereto have relied upon their own knowledge and judgment and have conducted such investigations they and their in-house counsel have deemed appropriate regarding this Agreement and their rights in connection with this Agreement. The parties hereto are not relying upon any representations or statements made by any other party, or any such other party’s employees, agents, representatives or attorneys, regarding this Agreement, except to the extent such representations are expressly set forth or incorporated in this Agreement. The parties hereto are not relying upon a legal duty, if one exists, on the part of any other party (or any such other party’s employees, agents, representatives or attorneys) to disclose any information in connection with the execution of this Agreement or its preparation, it being expressly understood that no party hereto shall ever assert any failure to disclose information on the part of any other party as a ground for challenging this Agreement or any provision hereof.

Section 4.12 Registrations, Exchanges. etc.

Notwithstanding anything to the contrary that may be contained in this Agreement, the provisions of this Agreement shall apply to the full extent set forth herein with respect to (a) any shares of Common Stock, now or hereafter authorized to be issued, (b) any and all securities of Baxalta into which the shares of Common Stock are converted, exchanged or substituted in any recapitalization or other capital reorganization by Baxalta and (c) any and all securities of any kind whatsoever of Baxalta or any successor or permitted assign of Baxalta (whether by merger, consolidation, sale of assets or otherwise) which may be issued on or after the date hereof in respect of, in conversion of, in exchange for or in substitution of, the shares of Common Stock, and shall be appropriately adjusted for any stock dividends, or other distributions, stock splits or reverse stock splits, combinations, recapitalizations, mergers, consolidations, exchange offers or other reorganizations occurring after the date hereof.

Section 4.13 Mutual Drafting .

This Agreement shall be deemed to be the joint work product of the parties, and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.

[The remainder of this page has been left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized representatives as of the date first above written.

 

BAXTER INTERNATIONAL INC.
By: /s/ James K. Saccaro
Name: James K. Saccaro
Title: Corporate Vice President
BAXALTA INCORPORATED
By: /s/ Robert J. Hombach
Name: Robert J. Hombach
Title: Corporate Vice President and Chief Financial Officer


Exhibit A

Form of

Agreement to be Bound

THIS INSTRUMENT forms part of the Shareholder’s and Registration Rights Agreement (the “ Agreement ”), dated as of June 30, 2015, by and between Baxter International Inc., a Delaware corporation (“ Baxter ”), and Baxalta Incorporated, a Delaware corporation. The undersigned hereby acknowledges having received a copy of the Agreement and having read the Agreement in its entirety, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, hereby agrees that the terms and conditions of the Agreement binding upon and inuring to the benefit of Baxter shall be binding upon and inure to the benefit of the undersigned and its successors and permitted assigns as if it were an original party to the Agreement.

IN WITNESS WHEREOF, the undersigned has executed this instrument on this      day of              , 20      .

 

(Signature of transferee)
 

 

Print name

Exhibit 10.4

Execution Version

U.S. $1,500,000,000

 

 

FIVE-YEAR CREDIT AGREEMENT

 

 

Dated as of July 1, 2015

among

BAXTER INTERNATIONAL INC.

as Borrower

THE FINANCIAL INSTITUTIONS NAMED HEREIN

as Banks

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent

and

BANK OF AMERICA, N.A.

and

CITIBANK, N.A.

as Syndication Agents

 

 

J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

CITIGROUP GLOBAL MARKETS INC.

Co-Lead Arrangers and Joint Bookrunners


TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS

  1   

SECTION 1.01.

Defined Terms   1   

SECTION 1.02.

Accounting Terms and Principles   17   

SECTION 1.03.

Other Interpretive Provisions   17   
ARTICLE II THE BORROWING FACILITY   18   

SECTION 2.01.

The Borrowing Facility   18   

SECTION 2.02.

Making the Advances   18   

SECTION 2.03.

Method of Electing Interest Rates   19   

SECTION 2.04.

Required Payments   20   

SECTION 2.05.

Increase in Aggregate Commitment   20   
ARTICLE III SWINGLINE LOANS   21   

SECTION 3.01.

Swingline Loans   21   

SECTION 3.02.

Swingline Loan Participations   22   
ARTICLE IV THE LETTER OF CREDIT FACILITY   22   

SECTION 4.01.

Obligation to Issue   22   

SECTION 4.02.

Types and Amounts   23   

SECTION 4.03.

Conditions   23   

SECTION 4.04.

Procedure for Issuance of Letters of Credit   24   

SECTION 4.05.

Letter of Credit Participation   25   

SECTION 4.06.

Reimbursement Obligation   26   

SECTION 4.07.

Issuing Bank Charges   26   

SECTION 4.08.

Issuing Bank Reporting Requirements   26   

SECTION 4.09.

Indemnification; Exoneration   27   
ARTICLE V GENERAL TERMS   28   

SECTION 5.01.

Illegality; Interest Rate Inadequate or Unfair   28   

SECTION 5.02.

Effect of Notice of Borrowing; Maximum Number of Borrowings   30   

SECTION 5.03.

Effect of Failure to Borrow or Fund   30   

SECTION 5.04.

Fees and Certain Credit Rating Determinations   31   

SECTION 5.05.

Reduction of the Commitments   32   

SECTION 5.06.

Repayment   32   

SECTION 5.07.

Interest   32   

SECTION 5.08.

Additional Interest on Eurodollar Rate Advances   32   

SECTION 5.09.

Interest on Overdue Principal   33   

SECTION 5.10.

Interest Rate Determinations   33   

SECTION 5.11.

Performance of Banks’ Obligations   34   

SECTION 5.12.

Optional Prepayments   34   

SECTION 5.13.

Increased Costs   35   

SECTION 5.14.

Payments and Computations   36   

SECTION 5.15.

Taxes   37   

SECTION 5.16.

Noteless Agreement; Evidence of Indebtedness   41   

SECTION 5.17.

Sharing of Payments, Etc.   42   

SECTION 5.18.

Termination and Prepayment with Respect to any Bank   43   

SECTION 5.19.

Defaulting Banks   45   

 

ii


ARTICLE VI CONDITIONS PRECEDENT   48   

SECTION 6.01.

Conditions Precedent to Effectiveness of Agreement   48   

SECTION 6.02.

Conditions Precedent to Each Credit Extension   49   
ARTICLE VII REPRESENTATIONS AND WARRANTIES   50   

SECTION 7.01.

Representations and Warranties of the Borrower   50   
ARTICLE VIII COVENANTS   52   

SECTION 8.01.

Affirmative Covenants of the Borrower   52   

SECTION 8.02.

Negative Covenants of the Borrower   55   
ARTICLE IX EVENTS OF DEFAULT   59   

SECTION 9.01.

Events of Default   59   

SECTION 9.02.

Cash Collateral   62   
ARTICLE X THE ADMINISTRATIVE AGENT   62   

SECTION 10.01.

Authorization and Action   62   

SECTION 10.02.

Duties and Obligations   63   

SECTION 10.03.

Administrative Agent and Affiliates   63   

SECTION 10.04.

Bank Credit Decision   63   

SECTION 10.05.

Indemnification   64   

SECTION 10.06.

Sub-Agents   64   

SECTION 10.07.

Successor Administrative Agent   64   

SECTION 10.08.

Syndication Agents and Co-Lead Arrangers   65   
ARTICLE XI MISCELLANEOUS   65   

SECTION 11.01.

Amendments, Etc.   65   

SECTION 11.02.

Notices, Etc.   66   

SECTION 11.03.

No Waiver; Cumulative Remedies   67   

SECTION 11.04.

Costs and Expenses; Indemnification   68   

SECTION 11.05.

Right of Set-Off   70   

SECTION 11.06.

Binding Effect; Assignment   70   

SECTION 11.07.

Confidentiality   73   

SECTION 11.08.

Governing Law   74   

SECTION 11.09.

Jurisdiction; Consent to Service of Process   75   

SECTION 11.10.

WAIVER OF JURY TRIAL   75   

SECTION 11.11.

Execution in Counterparts   76   

SECTION 11.12.

Severability   76   

SECTION 11.13.

Entire Agreement   76   

SECTION 11.14.

Existing US Agreement   76   

SECTION 11.15.

USA PATRIOT ACT   76   

SECTION 11.16.

No Advisory or Fiduciary Responsibility   76   

SECTION 11.17.

Lending Installations   77   

 

iii


EXHIBITS AND SCHEDULES

 

Exhibit 2.02

-

Form of Notice of Borrowing

Exhibit 2.03

-

Form of Notice of Interest Rate Election

Exhibit 11.06

-

Form of Assignment and Acceptance

Exhibit C-1

-

Form of U.S. Tax Compliance Certificate

Exhibit C-2

-

Form of U.S. Tax Compliance Certificate

Exhibit C-3

-

Form of U.S. Tax Compliance Certificate

Exhibit C-4

-

Form of U.S. Tax Compliance Certificate

Schedule 1.01

-

Commitments

Schedule 1.02

-

Existing Letters of Credit

Schedule 5

-

Pricing Matrix

 

iv


FIVE-YEAR CREDIT AGREEMENT

Dated as of July 1, 2015

Baxter International Inc., a Delaware corporation (the “ Borrower ”), the financial institutions listed on the signature pages of this Agreement under the heading “Banks” (such financial institutions and any successor financial institution that becomes a party to this Agreement pursuant to Section 2.05 , 5.18 or 11.06 , each a “ Bank ” and collectively, the “ Banks ”), and JPMorgan Chase Bank, National Association (“ JPMorgan Chase ”), as administrative agent hereunder (such administrative agent and any successor administrative agent appointed pursuant to Section 10.07 , “ Administrative Agent ”), agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Defined Terms . As used in this Five-Year Credit Agreement (this “ Agreement ”), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Act ” has the meaning assigned to that term in Section 11.15 .

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Advance ” means (a) an advance by a Bank to the Borrower pursuant to Section 2.01 , as the same may be Converted or continued from time to time pursuant to Section 2.03 , (b) an advance by a Swingline Bank to the Borrower pursuant to Section 3.01 or (c) an automatic advance by a Bank to the Borrower pursuant to Section 4.06 . At any time, depending upon the interest rate selected therefor or otherwise applicable thereto in accordance with Section 2.03 or 5.01 , an Advance shall be a Base Rate Advance or a Eurodollar Rate Advance.

Affiliate ” means, as to any Person at any time, any other Person that at such time, directly or indirectly, controls, is controlled by or is under common control with such Person.

Aggregate Commitments ” means, at any time, the aggregate amount of the Commitments of all Banks hereunder at such time.

Aggregate Revolving Credit Exposure ” means, at any time, the aggregate amount of the Revolving Credit Exposure of all Banks hereunder at such time.

Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

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Applicable Base Rate Margin ” means, at any time with respect to each outstanding Base Rate Advance, a rate per annum determined in accordance with Schedule 5.

Applicable Eurodollar Margin ” means, at any time with respect to each outstanding Eurodollar Rate Advance, a rate per annum determined in accordance with Schedule 5.

Applicable Lending Office ” means, with respect to each Bank, such Bank’s Domestic Lending Office in the case of a Base Rate Advance, and such Bank’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

Applicable Percentage ” means, with respect to a Bank, such Bank’s pro rata share of the Aggregate Commitments (or, after the Commitments have been terminated, the aggregate unpaid principal amount of Advances and L/C Obligations then outstanding under the Agreement).

Approved Fund ” means any Fund that is administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.

Assignment and Acceptance ” has the meaning assigned to that term in Section 11.06(c) .

Bank ” and “ Banks ” are defined in the first paragraph hereof. Unless the context otherwise requires, the term “Banks” includes the Swingline Banks and the Issuing Banks.

Bank Termination Date ” has the meaning assigned to that term in Section 5.18(b) .

Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Base Rate ” means a fluctuating rate of interest equal to the highest of (a) the Prime Rate, (b) the sum of the Federal Funds Rate plus 1/2% per annum and (c) the Eurodollar Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the Eurodollar Rate for any day shall be based on page LIBOR01 of the Reuters screen (or, in the

 

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event such rate does not appear on such Reuters page, on any successor or substitute Reuters page that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Eurodollar Rate shall be effective from the effective date of such change in the Prime Rate, the Federal Funds Rate or the Eurodollar Rate, respectively.

Base Rate Advance ” means (a) an Advance made or to be made by a Bank pursuant to Section 2.01 , as a Base Rate Advance in accordance with the applicable Notice of Borrowing, or pursuant to Section 5.01 , as a Base Rate Advance in substitution for a Eurodollar Rate Advance, or pursuant to Section 4.06 , as a Base Rate Advance by a Bank funding an unreimbursed Reimbursement Obligation, and (b) any Advance Converted into a Base Rate Advance in accordance with Section 2.03 or Section 5.01 . Each Base Rate Advance shall bear interest as provided in Section 5.07(a) .

Baxter Debt Tender ” means the tender offers for, or make-whole redemptions with respect to, up to $3,000,000,000 of the Borrower’s issued and outstanding indebtedness, to be launched in connection with the Spin Off.

Borrower ” is defined in the first paragraph hereof.

Borrowing ” means (a) a borrowing consisting of Advances of the same Type, and as to which a single Interest Period is in effect, made on the same day by the Banks, as the same may be Converted or continued from time to time pursuant to Section 2.03 and after giving effect to any subsequent Conversion or continuation in connection with which a single Borrowing may have been divided into several Borrowings or several Borrowings may have been combined (in whole or in part) into a single Borrowing, (b) a Swingline Loan or (c) a borrowing of Advances pursuant to Section 4.06 made on the same day by the Banks. An Advance substituted, pursuant to Section 5.01 , for an Advance made in connection with any Borrowing shall continue to comprise a part of such Borrowing with the same effect as if such substituted Advance were an Advance of the Type requested in the applicable Notice of Borrowing or Notice of Interest Rate Election.

Borrowing Date ” means a date on which an Advance is, or is proposed to be, made hereunder, or a Letter of Credit is, or is proposed to be, issued hereunder.

Business Day ” means (a) with respect to a Base Rate Advance or for any other purpose not relating to any borrowing, payment or rate selection of Eurodollar Rate Advances, a Domestic Business Day, and (b) with respect to a Eurodollar Rate Advance, a Eurodollar Business Day.

Cash Equivalent Investments ” means:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

 

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(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and

(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

Change in Law ” has the meaning assigned to that term in Section 5.13 .

Change of Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof) of fifty percent (50%) or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated.

Closing Date ” means July 1, 2015.

Code ” means the Internal Revenue Code of 1986.

Co-Lead Arrangers ” means J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their capacities as Co-Lead Arrangers and Joint Bookrunners.

Commitment ” means, with respect to each Bank, the commitment of such Bank to make Advances and to acquire participations in Swingline Loans and Letters of Credit hereunder, the maximum extent of such commitment being expressed as the amount indicated opposite such Bank’s name on Schedule 1.01 hereto, as such amount may from time to time have been increased pursuant to Section 2.05, reduced pursuant to Section 5.05 or modified in accordance with Section 11.06 .

Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

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Consolidated ” refers to the full consolidation of the accounts of the Borrower and its Subsidiaries in accordance with GAAP, including principles of consolidation, consistent with those applied in the preparation of the financial statements referred to in Section 7.01(f) .

Consolidated Adjusted Debt ” means, as of any date of determination, the amount of Debt as of such date; provided that on any date on which the outstanding principal amount of all Advances is zero, Consolidated Adjusted Debt shall be deemed reduced by an amount equal to the lesser of (a) $1,500,000,000 (the “ Cash Cap ”) and (b) the sum of (i) 100% of the unrestricted cash and Cash Equivalent Investments held by the Borrower and its domestic Consolidated Subsidiaries on such date, plus (ii) 65% of the unrestricted cash and Cash Equivalent Investments held by foreign Consolidated Subsidiaries of the Borrower on such date; provided, further , that until the earlier of (x) the date the Borrower consummates the Baxter Debt Tender in full and (y) September 1, 2015, the Cash Cap shall be increased by $3,000,000,000.

Consolidated EBITDA ” means, with reference to any period, the net income (or loss) of the Borrower and its Consolidated Subsidiaries for such period, plus , to the extent deducted from revenues in determining such net income (or loss), without duplication, (i) Consolidated Interest Expense, (ii) expense for income taxes paid or accrued, (iii) depreciation and amortization expense, (iv) amortization of intangibles (including goodwill) and organization costs, (v) any extraordinary, unusual or non-recurring non-cash expenses or losses or other non-cash charges (including, whether or not otherwise includable as a separate item in the statement of such net income for such period, non-cash losses on sales of assets outside of the ordinary course of business) which the Borrower reasonably believes will not result in a cash charge or payment, (vi) cash transaction costs and other costs and expenses arising from, occurring in connection with or relating to the Spin Off and recorded within 18 months after the consummation thereof, including any restructuring costs and expenses, any advisory fees (including investment banking fees), legal accounting costs and expenses, consulting costs and debt breakage costs (including any make whole or prepayment premiums, write offs or swap termination costs), and (vii) cash restructuring charges, non-recurring cash charges, unusual cash charges and extraordinary cash charges (including any Gambro related integration costs and expenses or other similar costs and expenses), provided that the amount under this clause (vii), together with any pro forma cash restructuring charge, non-recurring cash charge and extraordinary cash charge adjustments pursuant to the proviso below shall in no event exceed $150,000,000 in the aggregate for such period and minus , to the extent included in such net income, (a) extraordinary non-cash gains realized other than in the ordinary course of business, (b) gains realized other than in the ordinary course of business that are non-cash, non-operating and non-recurring, and (c) non-cash gains arising from accounting relating to income realized or adjustments to the value of equity held in entities that are not subsidiaries, all as determined in accordance with GAAP and calculated for the Borrower and its Consolidated Subsidiaries on a consolidated basis; provided , that solely for purposes of calculating Consolidated EBITDA of the Borrower and its Consolidated Subsidiaries for the quarter ending June 30, 2015, in lieu of determining such amount in accordance with GAAP, such calculation shall be made by taking the applicable figures from the Form 10-Q of the Borrower for such period and reducing them by the applicable figures from the Form 10-Q of Baxalta Incorporated for such period; provided , further that for purposes of calculating Consolidated EBITDA, if the sales revenue generated by any Person or business unit acquired, divested or liquidated, by the Borrower or any Subsidiary during such period in the 12 months prior to such acquisition, divestiture or liquidation was

 

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$25,000,000 or more, then the consolidated net income of such Person or business unit acquired, or divested or liquidated (plus, to the extent deducted in determining such consolidated net income, Consolidated Interest Expense, income tax expense, depreciation and amortization and non-cash compensation expenses of such Person or business unit) shall be included (or, in the case of a divestiture or liquidation, excluded) on a pro forma basis for such period (assuming the consummation of each such acquisition and the incurrence or assumption of any Debt in connection therewith (or the consummation of such divestiture or liquidation) occurred on the first day of such period) in accordance with Article 11 of Regulation S-X of the SEC. Notwithstanding the foregoing, Consolidated EBITDA for each fiscal quarter ending on the date set forth below shall be deemed to be the amount set forth below opposite such fiscal quarter end:

 

Fiscal Quarter Ending

   Consolidated EBITDA  

September 30, 2014

   $ 497,000,000  

December 31, 2014

   $ 478,000,000   

March 31, 2015

   $ 324,000,000   

Consolidated Interest Expense ” means, for any period, total cash interest expense deducted in accordance with GAAP in the computation of net income of the Borrower and its Consolidated Subsidiaries for such period with respect to all outstanding Debt of the Borrower and its Consolidated Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs of rate hedging in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).

Consolidated Net Tangible Assets ” means the total amount of assets which would be included on a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries (and which shall reflect the deduction of applicable reserves) after deducting therefrom all current liabilities of the Borrower and its Consolidated Subsidiaries and all Intangible Assets.

Consolidated Subsidiary ” means any Subsidiary of the Borrower the accounts of which are Consolidated.

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

Convert ,” “ Conversion ,” “ Converting ” and “ Converted ” each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.03 .

Credit Extension ” means a borrowing of Advances or the issuance of a Letter of Credit hereunder.

Credit Ratings ” has the meaning assigned to that term in Schedule 5.

 

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Debentures ” means long-term debt securities (without third-party credit enhancement).

Debt ” means the sum of: (a) indebtedness for borrowed money or for the deferred purchase price of property or services carried as indebtedness on the Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries (excluding accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (b) obligations of the Borrower and its Consolidated Subsidiaries as lessee under leases that, in accordance with GAAP, are recorded as capital leases, and (c) obligations of the Borrower and its Consolidated Subsidiaries under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of other parties of the kinds referred to in clauses (a) and (b) above (other than Debt of any Subsidiary, to the extent such Debt is included in the calculation of Debt as a result of clause (a) or (b) above) in excess of $100,000,000 in the aggregate for all such obligations described in this clause (c). The term “Debt” shall not include the undrawn face amount of any letter of credit issued for the account of the Borrower or any of its Consolidated Subsidiaries, but shall include the reimbursement obligation owing from time to time by the Borrower or any of its Consolidated Subsidiaries in respect of drawings made under any letter of credit in the event reimbursement is not made immediately following the applicable drawing.

Defaulting Bank ” means (a) any Bank that (i) has failed, within two (2) Business Days of the date required to be funded or paid, to (1) fund any portion of its Commitment, (2) fund any portion of its participations in Letters of Credit or Swingline Loans or (3) pay over to any Recipient any other amount required to be paid by it hereunder, unless, in the case of clause (1)  above, such Bank notifies the Administrative Agent in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) has notified the Borrower or any Recipient in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding an advance under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (iii) has failed, within three (3) Business Days after request by a Recipient, acting in good faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Advances and participations in then outstanding Letters of Credit, Swingline Loans and Advances under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (ii) upon such Recipient’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (iii) has become the subject of a Bankruptcy Event; or (b) a Bank whose Parent shall become the subject of a Bankruptcy Event.

Dollars ” and “ $ ” means the lawful currency of the United States of America.

Domestic Business Day ” means a day (other than Saturday or Sunday) of the year on which banks are not required or authorized to close in New York City or Chicago, Illinois and are generally open for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.

 

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Domestic Lending Office ” means, with respect to each Bank, the office of such Bank specified as its “Domestic Lending Office” on an administrative questionnaire delivered to the Administrative Agent prior to the date such Bank becomes a party to this Agreement or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.

Environmental Laws ” means federal, state, local and foreign laws, rules and regulations relating to the release, emission, disposal, storage and related handling of waste materials, pollutants and hazardous substances.

Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in a Person, and any and all warrants, rights or options to purchase any of the foregoing.

ERISA ” means the Employee Retirement Income Security Act of 1974. References to sections of ERISA also refer to any successor sections.

Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurodollar Business Day ” means any Domestic Business Day on which dealings in Dollars are carried on in the London interbank market.

Eurodollar Lending Office ” means, with respect to each Bank, the office of such Bank specified as its “Eurodollar Lending Office” on an administrative questionnaire delivered to the Administrative Agent prior to the date of this Agreement (or, if no such office is specified, its Domestic Lending Office) or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.

Eurodollar Rate ” means, with respect to any Eurodollar Rate Advance for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in Dollars for a period equal in length to such Interest Period as displayed on page LIBOR01 of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute Reuters page that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “ Eurodollar Screen Rate ”) at approximately 11:00 a.m. London time two Business Days prior to the first day of such Interest Period; provided that if the Eurodollar Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided further that if the Eurodollar Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) then the Eurodollar Rate shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

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Eurodollar Rate Advance ” means (i) an Advance made or to be made by a Bank pursuant to Section 2.01 as a Eurodollar Rate Advance in accordance with the applicable Notice of Borrowing, and (ii) any Advance continued as or Converted into a Eurodollar Rate Advance in accordance with Section 2.03 . Each Eurodollar Rate Advance shall bear interest as provided in Section 5.07(b) .

Eurodollar Rate Reserve Percentage ” of any Bank for the Interest Period for any Eurodollar Rate Advance means the maximum reserve percentage applicable during such Interest Period (or, if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System for determining the reserve requirement (including any emergency, supplemental or other marginal reserve requirement and taking into account any transitional adjustments or other scheduled changes in reserve requirements during such Interest Period) for such Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.

Eurodollar Screen Rate ” has the meaning assigned to it in the definition of “Eurodollar Rate.”

Events of Default ” has the meaning assigned to that term in Section 9.01 .

Exchange Act ” means the Securities Exchange Act of 1934.

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Bank, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Bank, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Bank acquires such interest in the Advance or Commitment (other than an assignment made pursuant to Section 5.18) or (ii) such Bank changes its lending office, except in each case to the extent that, pursuant to Section 5.15 , amounts with respect to such Taxes were payable either to such Bank’s assignor immediately before such Bank became a party hereto or to such Bank immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.15(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Existing Euro Facility ” means Baxter Healthcare SA’s revolving credit agreement dated as of January 7, 2008.

Existing Letters of Credit ” means the Letters of Credit identified on Schedule 1.02 hereto.

Existing US Facility ’ means the Borrower’s four-year revolving credit agreement dated as of June 17, 2011.

 

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Facility Fee ” is defined in Section 5.04(a) .

Facility Fee Rate ” means a rate per annum determined in accordance with Schedule 5.

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Federal Funds Rate ” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day by the Federal Reserve Bank of New York or, if such rate is not so published for such day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it. In the event that the Federal Funds Rate determined as provided above is less than zero, the Federal Funds Rate shall be deemed to be zero.

Fitch ” means Fitch, Inc., or its successor.

Foreign Bank ” means (a) if the Borrower is a U.S. Person, a Bank that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Bank that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

Form 10 ” means the Registration Statement on Form 10 filed with the SEC by Baxalta Incorporated on December 10, 2014, as amended from time to time, to effect the Spin Off, as declared effective on June 9, 2015.

Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP ” means generally accepted accounting principles as in effect from time to time in the United States.

Governmental Acts ” is defined in Section 4.09(a) .

Governmental Authority ” means any nation or government, any federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Governmental Entity ” has the meaning assigned to that term in Section 8.02(a)(xvii) .

Impacted Interest Period ” has the meaning assigned to such term in the definition of “Eurodollar Rate”.

 

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Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under this Agreement or any Note and (b) to the extent not otherwise described in clause (a), Other Taxes.

Intangible Assets ” means all assets of the Borrower and its Consolidated Subsidiaries which are treated as intangibles in conformity with GAAP on the Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries.

Interest Coverage Ratio ” means, (i) as of the last day of the fiscal quarter ended September 30, 2015, the ratio of (A) Consolidated EBITDA for such fiscal quarter to (B) Consolidated Interest Expense for such fiscal quarter, (ii) as of the last day of the period of two consecutive fiscal quarters ended December 31, 2015, the ratio of (A) Consolidated EBITDA for such period of two consecutive fiscal quarters to (B) Consolidated Interest Expense for such period, (iii) as of the last day of the three fiscal quarter period ended March 31, 2016, the ratio of (A) Consolidated EBITDA for such period of three consecutive fiscal quarters to (B) Consolidated Interest Expense for such period and (iv) as of the last day of any period of four consecutive fiscal quarters ending on or after June 30, 2016, the ratio of (A) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended, to (B) Consolidated Interest Expense for such period.

Interest Period ” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Advance (or, in the case of any Borrowing, on the effective date of continuation or Conversion thereof pursuant to Section 2.03 ) and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one (1), two (2) , three (3) or six (6) months; provided that:

(i) The duration of any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date;

(ii) Interest Periods commencing on the same day for Advances comprising the same Borrowing shall be of the same duration;

(iii) Whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, unless such extension would cause the last day of such Interest Period to occur in the next following calendar month, in which case the last day of such Interest Period shall occur on the immediately preceding Business Day; and

(iv) If an Interest Period begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), such Interest Period shall end on the last Business Day of a calendar month.

Interpolated Rate ” means, at any time for any Interest Period, the rate per annum (rounded to the same number of decimal places as the Eurodollar Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest

 

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error) to be equal to the rate that results from interpolating on a linear basis between: (i) the Eurodollar Screen Rate for the longest period for which the Eurodollar Screen Rate is available that is shorter than the Impacted Interest Period; and (ii) the Eurodollar Screen Rate for the shortest period for which that Eurodollar Screen Rate is available that exceeds the Impacted Interest Period, in each case, at such time.

IRS ” means the United States Internal Revenue Service.

Issuing Banks ” means each of JPMorgan Chase, Bank of America, N.A., Citibank, N.A. and any other Bank that, at the Borrower’s request, agrees, in such other Bank’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit under this Agreement, and their respective successors and assigns.

JPMorgan Chase ” is defined in the first paragraph hereof.

L/C Application ” means a letter of credit application and reimbursement agreement in such form as the applicable Issuing Bank may from time to time employ in the ordinary course of business.

L/C Commitment ” means, with respect to any Issuing Bank at any time, the amount indicated opposite such Bank’s name on Schedule 1.01 hereto or such other amount as may be agreed between such Issuing Bank and the Borrower, and specified to the Administrative Agent, from time to time.

L/C Draft ” means a draft drawn on an Issuing Bank pursuant to a Letter of Credit.

L/C Exposure ” means, at any time, the sum of the L/C Obligations at such time. The L/C Exposure of any Bank at any time shall be its Applicable Percentage of the total L/C Exposure at such time.

L/C Interest ” has the meaning assigned to such term in Section 4.05 .

L/C Obligations ” means, without duplication, an amount equal to the sum of (i) the aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate outstanding amount of all Reimbursement Obligations at such time and (iv) the aggregate face amount of all Letters of Credit requested by the Borrower but not yet issued (unless the request for an unissued Letter of Credit has been denied). The L/C Obligations of any Bank at any time shall be such Bank’s Applicable Percentage multiplied by the aggregate L/C Obligations at such time.

Letter of Credit ” means any letter of credit issued by an Issuing Bank pursuant to Section 4.01 .

Letter of Credit Fee ” is defined in Section 5.04(b) .

 

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Letter of Credit Fee Rate ” means a rate per annum determined in accordance with Schedule 5 .

Local Time ” means Chicago time.

Majority Banks ” means at any time Banks having more than fifty percent (50%) of the then aggregate amount of the Commitments or, if the Commitments have been terminated, holding more than fifty percent (50%) of the Aggregate Revolving Credit Exposure then outstanding under this Agreement. The Commitments, Advances, Swingline Loans and L/C Obligations of any Defaulting Bank shall be disregarded in determining the Majority Banks at any time.

Margin Regulations ” has the meaning assigned to that term in Section 8.01(g) .

Margin Stock ” has the meaning assigned to that term under Regulation U issued by the Board of Governors of the Federal Reserve System.

Material Acquisition ” means a transaction whereby by the Borrower or one of its Consolidated Subsidiaries acquires equity interests or assets of a Person (or a division or particular business of a Person), or merges, consolidates or otherwise combines with a Person (excluding, in each case above, a Person that was a Consolidated Subsidiary prior to such transaction), for aggregate cash consideration of $250,000,000 or more.

Material Subsidiary ” means any subsidiary of the Borrower that would be a significant subsidiary of the Borrower within the meaning of Rule 1-02(w)(2) under Regulation S-X promulgated by the Securities and Exchange Commission; provided that the reference to “10 percent of the total assets of the registrant and its subsidiaries” therein shall be deemed for the purposes of this definition to read as “20 percent of the total assets of the registrant and its subsidiaries”. As of the Closing Date, the Material Subsidiaries are Baxter Healthcare Corporation and Baxter World Trade Corporation.

Moody’s ” means Moody’s Investors Service, Inc., or its successor.

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any Material Subsidiary makes or is obligated to make contributions.

Net Leverage Ratio ” means, as of the last day of any period of four consecutive fiscal quarters, the ratio of (i) Consolidated Adjusted Debt as of such day to (ii) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.

Non-Consenting Bank ” means any Bank that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Banks in accordance with the terms of Section 11.01 and (ii) has been approved by the Majority Banks.

Note ” has the meaning assigned to that term in Section 5.16(d) .

Notice of Borrowing ” has the meaning assigned to that term in Section 2.02 .

 

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Notice of Interest Rate Election ” has the meaning assigned to that term in Section 2.03 .

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement or any Note, or sold or assigned an interest in any Advance or this Agreement or any Note).

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any Note, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.18) .

Parent ” means, with respect to any Bank, any Person as to which such Bank is, directly or indirectly, a subsidiary.

Person ” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

PBGC ” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.

Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any Material Subsidiary or to which the Borrower or any Material Subsidiary contributes or has an obligation to contribute.

Prime Rate ” means a rate per annum equal to the prime rate of interest announced from time to time by JPMorgan Chase, changing when and as said prime rate changes.

Receivable ” has the meaning assigned to that term in Section 8.02(a)(xii) .

Recipient ” means, as applicable, (i) the Administrative Agent, (ii) any Bank and (iii) any Issuing Bank.

Register ” has the meaning assigned to that term in Section 11.06(e) .

Reimbursement Obligation ” is defined in Section 4.06 .

 

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Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates

Revolving Credit Exposure ” means, with respect to any Bank at any time, the sum of the outstanding principal amount of such Bank’s Advances pursuant to Section 2.01 , its L/C Exposure and its Swingline Exposure at such time.

S&P ” means Standard & Poor’s Financial Services, LLC, or its successor.

Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (ii) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

Sanctioned Country ” means, at any time, a country or territory that is the subject or target of comprehensive country-wide economic or financial sanctions or trade embargoes imposed, administered or enforced by any Person listed in the definition of “Sanctions” (the Sanctioned Countries as of the date hereof being Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person ” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union or any European Union member state, (ii) any Person operating, organized or resident in a Sanctioned Country or (iii) any Person controlled or more than 50% owned by any such Person.

SEC ” means the United States Securities and Exchange Commission or any successor thereto.

Secured Debt ” means the amount of Debt or other obligation or liability of the Borrower or any of its Material Subsidiaries the payment of which is secured by a Security Interest.

Security Interest ” means any lien, security interest, mortgage or other charge or encumbrance of any kind, title retention device, pledge or any other type of preferential arrangement, upon or with respect to any property of the Borrower or of any Material Subsidiary, whether now owned or hereafter acquired.

Special Notice ” has the meaning assigned to that term in Section 5.18(a) .

Spin Off ” means the spin-off by the Borrower of Baxalta Incorporated described in the Form 10.

 

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Subsidiary ” means, at any time, any entity with respect to which at such time the Borrower alone owns, the Borrower and one or more Subsidiaries together own, or the Borrower and any Person controlling the Borrower together own, in each such case directly or indirectly, capital stock (or the equivalent equity interest) having ordinary voting power to elect a majority of the members of the Board of Directors of such corporation (or, in the case of a partnership or joint venture, having the majority interest in the capital or profits of such entity).

Successor Bank ” has the meaning assigned to that term in Section 5.18(b) .

Swingline Banks ” means JPMorgan Chase, Bank of America, N.A. and Citibank, N.A., each in its capacity as a lender of Swingline Loans hereunder.

Swingline Exposure ” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Bank at any time shall be the sum of (i) its Applicable Percentage of the total Swingline Exposure at such time, other than with respect to any Swingline Loans made by such Bank in its capacity as a Swingline Bank, and (ii) the outstanding principal amount at such time of all Swingline Loans made by such Bank in its capacity as a Swingline Bank (less the amount of participations funded by the other Banks in such Swingline Loans).

Swingline Loan ” means a loan made pursuant to Section 3.01 .

Syndication Agents ” means Bank of America, N.A. and Citibank, N.A., in their capacities as Syndication Agents.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

TB Advance ” has the meaning assigned to that term in Section 5.18(c) .

Terminated Bank ” has the meaning assigned to that term in Section 5.18(b) .

Termination Date ” means, the earlier of (i) July 1, 2020 and (ii) the date on which the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms hereof.

Termination Notice ” has the meaning assigned to that term in Section 5.18(b) .

Type ” of Advance means Eurodollar Rate Advances (including any Base Rate Advances which shall, pursuant to Section 5.01 , be substituted therefor) or Base Rate Advances.

Unfunded Liability ” means, in the case of a Plan, the amount, if any, by which the present value of all vested benefits accrued to the date of determination under such Plan exceeds the fair market actuarial value of all assets of such Plan allocable to such benefits as of such date, calculated as of the most recent valuation date for such Plan by the Plan’s enrolled actuary using the actuarial assumptions used to calculate the Plan’s minimum funding obligation under ERISA.

 

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Unmatured Event of Default ” means an event which would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

U.S. Borrower ” means any Borrower that is a U.S. Person.

U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate ” has the meaning assigned to such term in paragraph (f) of Section 5.15 .

SECTION 1.02. Accounting Terms and Principles .

(a) All accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Borrower’s independent accountants or, in the case of the financial statements required to be delivered pursuant to Section 8.01(f)(i) , as determined by the Borrower to be required in accordance with GAAP) with the December 31, 2014 audited Consolidated financial statements of the Borrower and its Consolidated Subsidiaries.

(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Agreement, and either the Borrower or the Majority Banks shall so request, the Administrative Agent, the Banks and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Banks); provided that, until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (b) the Borrower shall provide to the Administrative Agent and each Bank financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

SECTION 1.03. Other Interpretive Provisions . Unless the context otherwise requires, (a) any pronoun shall include the corresponding masculine, feminine and neuter forms; (b) the words “include” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) any definition of or reference to an agreement, instrument or other document (including this Agreement) shall be construed to refer to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified; (d) any reference to a Person shall be construed to include such Person’s successors and permitted assigns; (e) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections hereof, and Exhibits and Schedules hereto; (f) any reference to a law or regulation shall include all statutory and regulatory provisions consolidating, amending, supplementing, replacing or interpreting such law from time to time;

 

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(g) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”; and (h) Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.

ARTICLE II

THE BORROWING FACILITY

SECTION 2.01. The Borrowing Facility . Each Bank severally agrees, on the terms and conditions provided herein, to make Advances denominated in Dollars to the Borrower from time to time on any Business Day during the period from the date hereof to the Termination Date in an aggregate Dollar principal amount that will not result in (a) such Bank’s Revolving Credit Exposure exceeding such Bank’s Commitment or (b) the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments. Subject to Section 5.01 , each Borrowing shall be in an aggregate amount equal to $20,000,000 (or a higher integral multiple of $5,000,000 (other than a Swingline Loan)), shall be made on the same day from the Banks ratably according to their respective Commitments and shall consist of Advances of the same Type. Within the limits of each Bank’s Commitment, the Borrower may borrow Advances under this Section 2.01 , maintain Advances outstanding by continuing or Converting such Advances pursuant to Section 2.03 , or prepay Advances pursuant to Section 5.12 , and re-borrow Advances under this Section 2.01 . The Aggregate Commitments to lend hereunder shall expire on the Termination Date.

SECTION 2.02. Making the Advances . Each Borrowing (other than a Swingline Loan) shall be requested by facsimile notice given by the Borrower to the Administrative Agent not later than (i) 10:00 a.m. (Local Time) three (3) Business Days prior to the proposed Borrowing Date (or, in the case of the initial Advances, such lesser number of days to which the Administrative Agent may agree), in the case of a Borrowing comprised of Eurodollar Rate Advances and (ii) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of a Borrowing comprised of Base Rate Advances. Each notice of Borrowing pursuant to this Section 2.02 (a “ Notice of Borrowing ”) shall be in substantially the form of Exhibit 2.02 hereto, specifying the proposed Borrowing Date, Type of Advances, aggregate amount of the proposed Borrowing and the Interest Period, if any, and shall include such information as shall be required by Section 8.01(g) . The Administrative Agent shall in turn promptly notify each Bank by facsimile of the date, applicable interest rate and aggregate amount of such Borrowing and such Bank’s ratable portion of such Borrowing. Each Bank, for the account of its Applicable Lending Office, shall, before 12:00 Noon (Chicago time) on the Borrowing Date specified in the notice received from the Administrative Agent pursuant to the preceding sentence, deposit such Bank’s ratable portion of such Borrowing in same day funds to the Administrative Agent’s LS2 Incoming Clearing Account No. 9008113381C3867 (ABA No. 021-000-021) (unless another account is designated by the Administrative Agent for such purpose), Reference: Baxter International Inc., maintained at 1 Chase Tower, Chicago, Illinois. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article VI , the Administrative Agent shall make same day funds in the amount of such funds available to the Borrower by 2:00 p.m. (Local Time) on the date of Borrowing, at the account specified by the Borrower in the applicable Notice of Borrowing.

 

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SECTION 2.03. Method of Electing Interest Rates .

(a) The Advances included in each Borrowing (other than a Swingline Loan) shall bear interest initially at the type of rate specified by the Borrower in the applicable Notice of Borrowing. Thereafter, (A) Base Rate Advances shall continue as Base Rate Advances unless such Advances are prepaid or Converted into Eurodollar Rate Advances; and (B) subject to Article V , Eurodollar Rate Advances shall continue as Eurodollar Rate Advances until the last day of the Interest Period therefor, at which time such Advances shall be prepaid, Converted to Base Rate Advances or continued as Eurodollar Rate Advances for a new Interest Period. This Section shall not apply to Swingline Loans, which may not be converted or continued.

Each election by the Borrower to continue or Convert Advances shall be made by delivering a notice (a “ Notice of Interest Rate Election ”) to the Administrative Agent by not later than 10:00 a.m. (Local Time) at least three (3) Business Days before the Conversion or continuation selected in such notice is to be effective. If the Borrower shall fail to issue a Notice of Interest Rate Election within three (3) Business Days prior to the end of any Interest Period for Eurodollar Rate Advances (unless the Borrower shall have issued a notice of prepayment in respect of the applicable Borrowing in accordance with Section 5.12 ), the Advances comprising such Borrowing shall be Converted into Base Rate Advances. A Notice of Interest Rate Election may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Borrowing; provided that (i) such portion is allocated ratably among the Advances comprising such Borrowing and (ii) the portion to which such Notice of Interest Rate Election applies, and the remaining portion to which it does not apply, are each $20,000,000 or any larger multiple of $5,000,000.

(b) Each Notice of Interest Rate Election shall be substantially in the form of Exhibit 2.03 hereto and shall specify:

(i) the Borrowing (or portion thereof) to which such notice applies;

(ii) the date on which the Conversion or continuation selected in such notice is to be effective, which shall comply with subsection (a)  above;

(iii) if the Advances comprising such Borrowing are to be Converted, the next Type of Advances; and

(iv) the duration of the new Interest Period (if any).

Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of Interest Period. Each Notice of Interest Rate Election shall be irrevocable when given by the Borrower.

 

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(c) Upon receipt of a Notice of Interest Rate Election from the Borrower pursuant to subsection (a)  above, the Administrative Agent shall promptly notify each Bank of the contents thereof.

(d) Upon the occurrence, and during the continuance, of an Event of Default, the Administrative Agent may (and, at the direction of the Majority Banks, the Administrative Agent shall) suspend the ability of the Borrower to continue, or Convert Borrowings into, Eurodollar Rate Advances, and each continuation of or Conversion into Eurodollar Rate proposed to occur during any such period of suspension shall be a Conversion into Base Rate Advances. Such suspension shall become effective upon notice thereof to the Borrower and each of the Banks, and shall remain in effect until the Event of Default giving rise to such notice is cured or waived.

SECTION 2.04. Required Payments . If at any time the Aggregate Revolving Credit Exposure exceeds the Aggregate Commitments, the Borrower shall immediately repay Advances, repay Swingline Loans, and/or cash collateralize any outstanding Letters of Credit in an aggregate principal amount sufficient to cause the remaining outstanding Advances, L/C Obligations and Swingline Loans not to exceed the Aggregate Commitments.

SECTION 2.05. Increase in Aggregate Commitment . From time to time after the Closing Date, the Borrower may, at its option, seek to increase the Aggregate Commitments by up to an aggregate amount of $750,000,000 (resulting in maximum Aggregate Commitments of up to $2,250,000,000) upon at least three (3) Business Days’ prior written notice to the Administrative Agent, which notice shall specify the amount of any such increase (which shall not be less than $100,000,000 or such lesser amount to which the Administrative Agent may agree) and shall certify that no Event of Default or Unmatured Event of Default has occurred and is continuing. After delivery of such notice, the Administrative Agent or the Borrower, in consultation with the Administrative Agent, may offer the increase (which may be declined by any Bank in its sole discretion) in the total Commitments on either a ratable basis to the Banks or on a non pro-rata basis to one or more Banks and/or to other banks or entities reasonably acceptable to the Administrative Agent and the Borrower. No increase in the total Commitments shall become effective until the existing or new Banks extending such incremental Commitment amount and the Borrower shall have delivered to the Administrative Agent a document in form and substance reasonably satisfactory to the Administrative Agent pursuant to which (i) any such existing Bank agrees to the amount of its Commitment increase, (ii) any such new Bank agrees to its Commitment amount and agrees to assume and accept the obligations and rights of a Bank hereunder, (iii) the Borrower accepts such incremental Commitments, (iv) the effective date of any increase in the Commitments is specified and (v) the Borrower certifies that on such date the conditions for a Credit Extension set forth in Section 6.02 are satisfied. Upon the effectiveness of any increase in the total Commitments pursuant hereto, (i) each Bank (new or existing) shall be deemed to have accepted an assignment from the existing Banks, and the existing Banks shall be deemed to have made an assignment to each new or existing Bank accepting a new or increased Commitment, of an interest in each then outstanding Advance (in each case, on the terms and conditions set forth in the Assignment and Assumption) and (ii) the Swingline Exposure and L/C Exposure of the existing and new Banks

 

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shall be automatically adjusted such that, after giving effect to such assignments and adjustments, all Revolving Credit Exposure hereunder is held ratably by the Banks in proportion to their respective Commitments. Assignments pursuant to the preceding sentence shall be made in exchange for, and substantially contemporaneously with the payment to the assigning Banks of, the principal amount assigned plus accrued and unpaid interest and Facility and Letter of Credit Fees. Payments received by assigning Banks pursuant to this Section in respect of the principal amount of any Eurodollar Rate Advance shall, for purposes of Section 11.04(b) be deemed prepayments of such Credit Extension. Any increase of the total Commitments pursuant to this Section shall be subject to receipt by the Administrative Agent from the Borrower of such supplemental opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. No consent of any Bank (other than the Banks agreeing to new or increased Commitments) shall be required for any incremental Commitment provided or Advance made pursuant to this Section 2.05 .

ARTICLE III

SWINGLINE LOANS

SECTION 3.01. Swingline Loans .

(a) Subject to the terms and conditions set forth herein, each Swingline Bank may, in its sole discretion, from the date hereof until the Termination Date make Swingline Loans to the Borrower in an aggregate principal amount for all Swingline Loans not to exceed $100,000,000 at any time outstanding that will not result in (i) such Swingline Bank’s Revolving Credit Exposure exceeding its Commitment or (ii) the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed promptly in writing), not later than 12:00 noon, Local Time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the Swingline Bank that is requested to make such Swingline Loan, the requested date (which shall be a Business Day) and amount (which shall be $1,000,000 or a higher integral multiple of $500,000) of the requested Swingline Loan. The Administrative Agent will promptly advise the applicable Swingline Banks of any such notice received from the Borrower. Each Swingline Bank shall make any requested Swingline Loan which, in its sole discretion, it elects to make, available to the Borrower by means of a credit to an account of the Borrower with the Administrative Agent designated for such purpose by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.

 

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SECTION 3.02. Swingline Loan Participations . Any Swingline Bank may by written notice given to the Administrative Agent require the Banks to acquire participations in all or a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Banks will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Bank, specifying in such notice such Bank’s Applicable Percentage of such Swingline Loans. Each Bank hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any event, if such notice is received by 12:00 noon, Local Time, on a Business Day no later than 5:00 p.m. Local Time on such Business Day and if received after 12:00 noon, Local Time, on a Business Day shall mean no later than 10:00 a.m. Local Time on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of such Swingline Bank such Bank’s Applicable Percentage of such Swingline Loans. Each Bank acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Bank shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02 with respect to Advances made by such Bank (and Section 2.02 shall apply, mutatis mutandis , to the payment obligations of the Banks), and the Administrative Agent shall promptly pay to such Swingline Bank the amounts so received by it from the Banks. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to such Swingline Banks. Any amounts received by a Swingline Bank from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by such Swingline Bank of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Banks that shall have made their payments pursuant to this paragraph and to such Swingline Banks, as their interests may appear; provided that any such payment so remitted shall be repaid to such Swingline Bank or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

ARTICLE IV

THE LETTER OF CREDIT FACILITY

SECTION 4.01. Obligation to Issue . Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and covenants of the Borrower herein set forth, each Issuing Bank hereby severally agrees to issue for the account of the Borrower through such Issuing Bank’s branches as it and the Borrower may jointly agree, one (1) or more Letters of Credit in accordance with this Article IV , from time to time during the period commencing on the date hereof and ending no later than five (5) Business Days prior to the Termination Date. On the Closing Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit issued under and governed in all respects by the terms and conditions of this Agreement, and each Bank shall participate in each Existing Letter of Credit in an amount equal to its Applicable Percentage.

 

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SECTION 4.02. Types and Amounts . No Issuing Bank shall have any obligation to and no Issuing Bank shall:

(a) issue any Letter of Credit if on the date of issuance, before or after giving effect to the Letter of Credit requested hereunder, (i) the Aggregate Revolving Credit Exposure at such time would exceed the Aggregate Commitments at such time, (ii) any Bank’s Revolving Credit Exposure would exceed its Commitment, (iii) the aggregate outstanding amount of the L/C Obligations would exceed $250,000,000 or (iv) the outstanding amount of the L/C Obligations of such Issuing Bank would exceed its L/C Commitment (unless otherwise agreed in writing by such Issuing Bank and prompt notice of such agreement is given to the Administrative Agent); or

(b) issue any Letter of Credit which has an expiration date (or date for payment of any draft presented thereunder) later than the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the scheduled Termination Date; provided , however , that an Issuing Bank may issue a Letter of Credit which has an expiration date (or date for payment of any draft presented thereunder) later than the date which is five (5) Business Days immediately preceding the Termination Date (such date being the “ LC Collateral Trigger Date ”) so long as on or before the LC Collateral Trigger Date the Borrower has cash collateralized such Letter of Credit in an amount and pursuant to documentation satisfactory to the applicable Issuing Bank (and, if such cash collateral has not been so furnished by the Borrower prior to the LC Collateral Trigger Date, then on the LC Collateral Trigger Date the Borrower shall deliver and pledge to the applicable Issuing Bank such cash collateral in such amount). Notwithstanding the foregoing, no Letter of Credit shall be issued which has an expiration date that is more than one (1) year beyond the Termination Date.

SECTION 4.03. Conditions .

(a) In addition to being subject to the satisfaction of the conditions contained in Sections 6.01 and 6.02 , the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:

(i) the Borrower shall have delivered to the applicable Issuing Bank (with a copy to the Administrative Agent) an L/C Application in the manner prescribed in Section 4.04 , and the proposed Letter of Credit shall be reasonably satisfactory to such Issuing Bank as to form and content; and

(ii) as of the date of issuance, no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no request or directive (whether or not having the force of law) from a Governmental Authority with

 

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jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of that Letter of Credit or shall impose upon the Issuing Bank with respect to any Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Bank is not otherwise compensated) or any unreimbursed loss, cost or expense which was not applicable, in effect and known to the Issuing Bank as of the date of this Agreement and which the Issuing Bank in good faith deems material to it.

(b) No Issuing Bank shall extend, renew, or amend any Letter of Credit unless the requirements of this Section 4.03 are met as though a new Letter of Credit were then being requested and issued.

(c) Notwithstanding anything herein to the contrary, no Issuing Bank shall have an obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person or any activity or business in any Sanctioned Country, in each case, in violation of applicable Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement.

SECTION 4.04. Procedure for Issuance of Letters of Credit .

(a) Prior to the issuance of each Letter of Credit, and as a condition of such issuance, the Borrower shall deliver to the Issuing Bank (with a copy to the Administrative Agent) an L/C Application signed by the Borrower, together with such other documents or items as may be required pursuant to the terms thereof. Unless the Issuing Bank shall otherwise agree, each Letter of Credit shall be issued no earlier than two (2) Business Days after delivery of the foregoing documents, which delivery may be by the Borrower to the Issuing Bank by facsimile transmission, telex or other electronic means followed by delivery of executed originals within five (5) days thereafter. The documents so delivered shall be in compliance with the requirements set forth in Sections 4.02 and 4.03 , and shall specify therein (i) the stated amount of the Letter of Credit requested, (ii) the effective date of issuance of such requested Letter of Credit, which shall be a Business Day, (iii) the date on which such requested Letter of Credit is to expire, which shall be a Business Day not later than five (5) Business Days prior to the Termination Date, except as permitted in Section 4.02(ii) , and (iv) the aggregate amount of L/C Obligations which are outstanding and which will be outstanding after giving effect to the requested Letter of Credit issuance. Subject to the terms and conditions of Sections 4.02 and 4.03 , and provided that the applicable conditions set forth in Sections 6.01 and 6.02 shall, to the knowledge of the Issuing Bank, have been satisfied, the Issuing Bank shall, on the requested date, issue a Letter of Credit on behalf of the Borrower in accordance with the Issuing Bank’s usual and customary business practices (and a copy of such issued Letter of Credit shall be delivered by the Issuing Bank to the Administrative Agent). In addition, any amendment of an Existing Letter of Credit that has the effect of increasing the face amount thereof or extending the expiration date thereof shall be deemed to be an issuance of a new Letter of Credit and shall be subject to the requirements of this Section 4.04 .

 

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(b) The applicable Issuing Bank shall give the Administrative Agent written or telex notice of the issuance of a Letter of Credit; provided , however , that the failure to provide such notice shall not result in any liability on the part of such Issuing Bank.

(c) Notwithstanding anything contained in any L/C Application or any document executed in connection therewith to the contrary, in the event any term or provision of such L/C Application or other document is inconsistent with any term or provision of this Agreement, the terms and provisions of this Agreement shall control and prevail.

SECTION 4.05. Letter of Credit Participation . Unless a Bank shall have notified the Issuing Bank, prior to its issuance of a Letter of Credit, that any applicable condition precedent set forth in Sections 6.01 or 6.02 had not then been satisfied, immediately upon the issuance of each other Letter of Credit hereunder, each Bank shall be deemed to have automatically, irrevocably and unconditionally purchased and received from the applicable Issuing Bank an undivided interest and participation in and to such Letter of Credit, the obligations of the Borrower in respect thereof, and the liability of such Issuing Bank thereunder (collectively, as to each Bank, an “ L/C Interest ”) in an amount equal to the amount available for drawing under such Letter of Credit multiplied by such Bank’s Applicable Percentage. Each Issuing Bank will notify each Bank that has a Commitment promptly upon presentation to it of an L/C Draft or upon any other draw under a Letter of Credit. On or before the Business Day on which an Issuing Bank makes payment of each such L/C Draft or, in the case of any other draw on a Letter of Credit, on demand by the Administrative Agent, each Bank shall make payment to the Administrative Agent, for the account of the applicable Issuing Bank, in immediately available funds in an amount equal to the amount of the payment under the L/C Draft or other draw on the Letter of Credit multiplied by such Bank’s Applicable Percentage. Except to the extent set forth in the last sentence of this Section 4.05 , the obligation of each Bank to reimburse the Issuing Banks under this Section 4.05 shall be unconditional, continuing, irrevocable and absolute without counterclaim or set-off; provided , however , the obligation of each Bank shall not extend to payments made under a Letter of Credit resulting from the Issuing Bank’s gross negligence or willful misconduct in honoring any L/C Draft. In the event that any Bank fails to make payment to the Administrative Agent of any amount due under this Section 4.05 , the Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Bank hereunder until the Administrative Agent receives such payment from such Bank or such obligation is otherwise fully satisfied, and such Bank shall pay to the Administrative Agent, for the account of the applicable Issuing Bank, interest on the amount of such Bank’s outstanding obligation at the Federal Funds Rate; provided , however , that nothing contained in this sentence shall relieve such Bank of its obligation to reimburse the applicable Issuing Bank for such amount in accordance with this Section 4.05 . Notwithstanding the foregoing, no Bank shall have any reimbursement, payment or other obligation with respect to any cash collateralized Letter of Credit issued pursuant to the proviso in Section 4.02(b)(ii) hereof.

 

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SECTION 4.06. Reimbursement Obligation . The Borrower agrees unconditionally, irrevocably and absolutely to pay promptly to the Administrative Agent, for the account of the Banks, the amount of each drawing made under or pursuant to a Letter of Credit (such obligation of the Borrower to reimburse the Administrative Agent for a drawing made under a Letter of Credit, a “ Reimbursement Obligation ” with respect to such Letter of Credit) plus all other charges and expenses with respect thereto specified in Section 4.07 or in the applicable L/C Application. If the Borrower at any time fails to repay a Reimbursement Obligation pursuant to this Section 4.06 , the Borrower shall be deemed to have elected to borrow under a Borrowing, as of the date of the drawing giving rise to the Reimbursement Obligation and equal in amount to the amount of the unpaid Reimbursement Obligation. Such Borrowing shall be made automatically, without notice, without any requirement to satisfy the conditions precedent otherwise applicable to a Borrowing and without regard to minimum amounts or integral multiples of any amount otherwise required for a Borrowing. Such Borrowing shall be comprised of Base Rate Advances made by the Banks, each Advance being in the amount of the portion of the related drawing that shall have been funded by the applicable Bank. The proceeds of such Borrowing shall be used to repay such Reimbursement Obligation.

SECTION 4.07. Issuing Bank Charges . In addition to the fees described in Section 5.04(b) , the Borrower agrees to pay to each Issuing Bank, (i) on the date of issuance of each Letter of Credit (or on such other date as may be agreed between the Borrower and the applicable Issuing Bank), a fronting fee in respect of such Letter of Credit in a separately agreed amount, and (ii) all reasonable and customary fees and other issuance, amendment, document examination, negotiation and presentment expenses and related charges in connection with the issuance, amendment, presentation of L/C Drafts, and the like customarily charged by the Issuing Banks with respect to Letters of Credit, including standard commissions, payable promptly following delivery to the Borrower of each invoice in respect of any such amount. The Existing Letters of Credit shall not be subject to the charges described herein to the extent such charges are duplicative of charges paid with respect thereto pursuant to the Existing Credit Agreement.

SECTION 4.08. Issuing Bank Reporting Requirements . In addition to the notices required by Section 4.04(b) , each Issuing Bank shall, no later than the tenth Business Day following the last day of each month, provide to the Administrative Agent, upon the Administrative Agent’s request, schedules, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issue, account party, amount, expiration date and the reference number of each Letter of Credit issued by it outstanding at any time during such month and the aggregate amount payable by the Borrower during such month. In addition, upon the request of the Administrative Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any Letter of Credit to which the Issuing Bank is party and such other documentation as may reasonably be requested by the Administrative Agent. Upon the request of any Bank, the Administrative Agent will provide to such Bank information concerning such Letters of Credit.

 

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SECTION 4.09. Indemnification; Exoneration .

(a) In addition to amounts payable as elsewhere provided in this Article IV , the Borrower hereby agrees to protect, indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and each Bank from and against any and all liabilities and costs which the Administrative Agent, such Issuing Bank or such Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit other than as a result of the gross negligence or willful misconduct of the Issuing Bank as determined in a non-appealable judgment by a court of competent jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “ Governmental Acts ”).

(b) As among the Borrower, the Banks, the Administrative Agent and the Issuing Banks, the Borrower assumes all risks of the acts and omissions of, or misuse of each Letter of Credit by, the beneficiary of such Letter of Credit. In furtherance and not in limitation of the foregoing, neither the Administrative Agent, any Issuing Bank nor any Bank shall be responsible for (unless caused by its gross negligence or willful misconduct): (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any other party in connection with the application for and issuance of the Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of a Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, facsimile, email or other similar form of electronic transmission or otherwise; (v) errors in interpretation of technical trade terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) any consequences arising from causes beyond the control of the Administrative Agent, the Issuing Banks and the Banks, including any Governmental Acts. None of the above shall affect, impair, or prevent the vesting of any Issuing Bank’s rights or powers under this Section 4.09 .

(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Issuing Bank under or in connection with the Letters of Credit or any related certificates shall not, in the absence of gross negligence or willful misconduct, put the applicable Issuing Bank, the Administrative Agent or any Bank under any resulting liability to the Borrower or relieve the Borrower of any of its obligations hereunder to any such Person.

 

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(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 4.09 shall survive the payment in full of the Advances and other obligations hereunder, the termination of the Letters of Credit and the termination of this Agreement.

ARTICLE V

GENERAL TERMS

SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair . The obligation of each Bank to extend an Advance on the date therefor is subject to the following:

(a) If, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Eurodollar Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Advances, such Bank shall so notify the Administrative Agent. The Administrative Agent and such Bank shall forthwith give notice thereof to the other Banks and the Borrower, whereupon until such Bank notifies the Borrower and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make (or continue or Convert other Advances into) Eurodollar Rate Advances shall be suspended and each Eurodollar Rate Advance that such Bank shall thereafter be required to make (or continue or Convert into) hereunder shall be made as (or continued as or Converted into) a Base Rate Advance, which Base Rate Advance shall be made (or continued or Converted) on the same day as the Eurodollar Rate Advances made (or continued or Converted into) by the other Banks and comprising the balance of such Borrowing. If such Bank (A) shall determine that it may not lawfully continue to maintain an outstanding Eurodollar Rate Advance until the last day of the current Interest Period therefor, (B) shall so specify in a written notice to the Borrower and the Administrative Agent and (C) shall deliver to the Borrower and the Administrative Agent an opinion of counsel concurring in such determination (unless three (3) or more Banks have reached a similar determination, in which case no such opinion shall be required), then the Borrower shall, on the last Business Day on which such Bank may lawfully continue such Advance as a Eurodollar Rate Advance, Convert in full the then outstanding principal amount of such Eurodollar Rate Advance into a Base Rate Advance in an equal principal amount (on which interest and principal shall be payable contemporaneously with the related Eurodollar Rate Advances of the other Banks).

 

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(b) If, with respect to Borrowings to consist of Eurodollar Rate Advances (i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon all parties hereto) that by reason of circumstances affecting generally the London interbank market and after using its best efforts to ascertain the interest rate applicable to the Eurodollar Rate Advances, adequate and reasonable means do not exist for ascertaining such applicable rate for the requested Interest Period, or (ii) by the Eurodollar Business Day before the first day of any Interest Period in respect of a Borrowing to consist of Eurodollar Rate Advances, the Administrative Agent shall have received notice from the Majority Banks that after using their respective best efforts to obtain deposits in Dollars, such deposits are not available to such Banks (as such best efforts and unavailability are conclusively certified in writing to the Administrative Agent and the Borrower) in the ordinary course of business in the London interbank market, in sufficient amounts to make their respective Eurodollar Rate Advances, then, in each case, the Administrative Agent shall by 12:00 Noon (Chicago time) on such Business Day notify the Borrower of such event, and the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or any subsequent Borrowing (and the right of the Borrower to Convert Advances into Eurodollar Rate Advances) shall be suspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist. The obligation of the Banks to make Eurodollar Rate Advances in connection with such Notice of Borrowing shall thereupon terminate, and each Bank shall extend a Base Rate Advance to the Borrower in lieu of the originally requested Eurodollar Rate Advance, which Base Rate Advance shall be made on the date specified in the original Notice of Borrowing. In the case of an outstanding Notice of Interest Rate Election at the time any such suspension shall occur, such Notice shall be deemed amended, without any further action on the part of the Borrower, to request that the Advances specified therein continue as or be Converted to Base Rate Advances.

(c) If the Majority Banks shall, by 11:00 a.m. (Chicago time) on the Eurodollar Business Day before the first day of any Interest Period in respect of a Borrowing to consist of Eurodollar Rate Advances, notify the Administrative Agent and the Borrower (setting forth in writing the reasons therefor) that the Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will not adequately reflect the cost to such Banks of making or funding their respective Eurodollar Rate Advances for such Interest Period, the right of the Borrower to select Eurodollar Rate Advances for such proposed Interest Period or any subsequent Interest Period shall be suspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist. The obligation of the Banks to make Eurodollar Rate Advances in connection with such Notice of Borrowing shall thereupon terminate and each Bank shall extend a Base Rate Advance to the Borrower in lieu of the originally requested Eurodollar Rate Advance, which Base Rate Advance shall be made on the date specified in the original Notice of Borrowing. In the case of an outstanding Notice of Interest Rate Election at the time any such suspension shall occur, such Notice shall be deemed amended, without any further action on the part of the Borrower, to request that the Advances specified therein be Converted to Base Rate Advances.

 

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SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings .

(a) Subject to Section 5.01 , each Notice of Borrowing and Notice of Interest Rate Election shall be irrevocable and binding on the Borrower. In the event that a Notice of Borrowing or Notice of Interest Rate Election is made by telephone and the written confirmation thereof differs in any respect from such telephone notice, the information contained in the telephone notice or the written confirmation, as the case may be, upon which the Administrative Agent shall have relied, as evidenced by its corresponding notice to the Banks, shall control for purposes of Advances to be made, continued or Converted under this Agreement.

(b) A Notice of Borrowing shall be rejected by the Administrative Agent, and the Banks shall have no obligation to extend any Advances that may be requested in such Notice of Borrowing, if after giving effect to the Borrowing requested in such Notice of Borrowing there would then be more than fifteen (15) Borrowings outstanding (excluding Swingline Loans).

SECTION 5.03. Effect of Failure to Borrow or Fund .

(a) In the case of any Borrowing which the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Bank against all direct out-of-pocket losses and reasonable expenses incurred by such Bank as a result of any failure by the Borrower to fulfill on or before the date specified for such Borrowing the applicable conditions set forth in Article VI to the extent of all direct out-of-pocket losses and reasonable expenses incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the Advance to be made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is not made on such date. The Borrower shall not be liable to any Bank under this Section 5.03(a) with respect to consequential damages or loss of anticipated profits arising or incurred by such Bank in connection with the Borrower’s failure to fulfill timely the applicable conditions set forth in Article VI .

(b) Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing (or, in the case of any Borrowing comprised of Base Rate Advances, prior to 12:00 Noon (Chicago time) on the date of such Borrowing) that such Bank will not make available to the Administrative Agent such Bank’s ratable portion of such Borrowing, the Administrative Agent may assume that such Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with the terms of Section 2.02 , and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this Agreement.

 

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(c) The failure of any Bank to make any Advance required to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Advance to be made by such other Bank on the date of any Borrowing.

SECTION 5.04. Fees and Certain Credit Rating Determinations .

(a) Facility Fees . The Borrower agrees to pay to the Administrative Agent for the ratable account of the Banks a facility fee (the “ Facility Fee ”) based on the average daily amount of each Bank’s portion of the Aggregate Commitments (whether used or unused) and, after the termination of the Commitments, upon each Bank’s Applicable Percentage of any remaining outstanding Revolving Credit Exposure, in each case in accordance with Schedule 5.

The Facility Fee shall begin accruing on the date hereof and shall be payable quarterly, in arrears, not later than the last day of each January, April, July and October, on the Termination Date and, if applicable, thereafter on demand; provided that if any Bank ceases to be a party hereto prior to the Termination Date, accrued and unpaid Facility Fees payable to such Bank shall be paid on the date such Bank’s Commitment is reduced to zero.

(b) Letter of Credit Fees . In addition to the fees described in Section 4.07 , the Borrower agrees to pay to the Administrative Agent for the account of each Bank a letter of credit fee (the “ Letter of Credit Fee ”), in respect of any period, at the Letter of Credit Fee Rate on the average daily aggregate amount of such Bank’s L/C Exposure during such period.

Accrued and unpaid Letter of Credit Fees shall be payable, in arrears, (i) on the last day of each January, April, July and October, (ii) on the Termination Date and (iii) thereafter on demand; provided that (a) if any Bank ceases to be a party hereto prior to the Termination Date, accrued and unpaid Letter of Credit Fees payable to such Bank shall be paid on the date such Bank’s Commitment is reduced to zero; and (b) if any Letter of Credit is cash collateralized pursuant to Section 4.02(b) (a “ Collateralized LC ”), then accrued and unpaid Letter of Credit Fees on such Collateralized LC shall not be payable on the Termination Date, but shall continue to be payable as provided in clause (i)  above and also shall be payable on the date of the expiration or termination of such Collateralized LC.

 

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SECTION 5.05. Reduction of the Commitments . The Borrower may, upon at least three (3) Business Days’ written notice to the Administrative Agent, terminate in whole or reduce ratably in part the respective Commitments of the Banks on a permanent basis; provided that (i) any such reduction shall not cause the Aggregate Commitments to be less than the Aggregate Revolving Credit Exposure at such time, and (ii) in the case of any partial reduction of the Commitments, such partial reduction shall be in an aggregate amount not less than the lesser of (A) $20,000,000 (or an integral multiple of $5,000,000 in excess thereof) and (B) the amount by which the Aggregate Commitments exceed the Aggregate Revolving Credit Exposure at such time.

SECTION 5.06. Repayment . The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Bank the then unpaid principal amount of each Advance on the Termination Date and (ii) to the Administrative Agent for the account of the applicable Swingline Banks the then unpaid principal amount of each Swingline Loan on the earlier of the Termination Date and the fifth Business Days after such Swingline Loan is made.

SECTION 5.07. Interest . The Borrower shall pay interest on the unpaid principal amount of each Advance made by each Bank from the date of such Advance until such principal amount shall be paid in full at the following rates per annum:

(a) Base Rate Advances and Swingline Loans . If such Advance is a Base Rate Advance or a Swingline Loan, a rate per annum equal at all times for such Advance to the Base Rate in effect from time to time plus the Applicable Base Rate Margin (such rate to change when and as the Base Rate or the Applicable Base Rate Margin changes) or, in the case of a Swingline Loan prior to the Banks funding their participations therein, at such other rate as may be agreed between the Borrower and the applicable Swingline Bank. Interest on all Base Rate Advances and Swingline Loans shall be paid quarterly in arrears on the last day of January, April, July and October and at final maturity (whether due to acceleration or otherwise) and thereafter upon demand or, in the case of a Swingline Loan prior to the Banks funding their participations therein, at such other times as may be agreed between the Borrower and the applicable Swingline Bank.

(b) Eurodollar Rate Advances . If such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the Eurodollar Rate for such Interest Period plus the Applicable Eurodollar Margin (such rate to change when and as the Applicable Eurodollar Margin changes), payable in arrears on (i) the last day of such Interest Period (and, if such Interest Period has a duration of more than three (3) months, on the date during such Interest Period which occurs three (3) months after the first day of such Interest Period) and (ii) on any date such Eurodollar Rate Advance shall be Converted or repaid (whether due to acceleration or otherwise), on the principal amount so Converted or repaid.

 

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SECTION 5.08. Additional Interest on Eurodollar Rate Advances .

(a) The Borrower shall pay to each Bank, so long as such Bank shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Advance of such Bank, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times during each Interest Period for such Advance to the remainder obtained by subtracting (i) the Eurodollar Rate for such Interest Period from (ii) the rate obtained by dividing the applicable rate referred to in clause (i)  above by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is payable on such Advance.

(b) For so long as any Bank is required to make special deposits with or comply with reserve assets, liquidity, cash margin or other requirements of any monetary or other authority (including any such requirement imposed by the Bank of England, the Financial Services Authority, the European Central Bank, any other central bank or the European System of Central Banks, but excluding requirements reflected in the Eurodollar Rate Reserve Percentage) in respect of any of such Bank’s Eurodollar Rate Advances, such Bank shall be entitled to require the Borrower to pay, contemporaneously with each payment of interest on each of such Bank’s Advances subject to such requirements, additional interest on such Advance at a rate per annum specified by such Bank to be the actual cost to such Bank of complying with such requirements in relation to such Advance.

(c) Any additional interest owed to a Bank pursuant to subsection (a) or (b)  above shall be determined by such Bank (and the amount so determined shall be prima facie evidence of the amount owed pursuant to the applicable subsection), and such Bank shall deliver written notice thereof to the Borrower through the Administrative Agent; provided that in the case of any such required reserves, special deposits or other requirements referred to in subsection   (a) or (b)  above that are imposed after the date of this Agreement, the Borrower shall not be required to compensate a Bank pursuant to this Section for any additional interest incurred more than 120 days prior to the date that such Bank notifies the Borrower of such required reserves, special deposits or other requirements and of such Bank’s intention to claim compensation therefor; provided , further , that, if any of the above referenced requirements are retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof. Any amount payable to a Bank pursuant to this Section 5.08 shall be paid to the Administrative Agent for the account of such Bank.

SECTION 5.09. Interest on Overdue Principal . If any amount of principal is not paid when due (whether at stated maturity, by acceleration or otherwise), that amount of principal shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to two percent (2%) per annum above the interest rate in effect from time to time with respect to the applicable Advance.

 

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SECTION 5.10. Interest Rate Determinations . The Administrative Agent shall give prompt notice to the Borrower and the Banks of any applicable interest rate determined by the Administrative Agent for purposes of Section 5.07 and the applicable interest rate under Section 5.07(b) .

SECTION 5.11. Performance of Banks’ Obligations . Each Bank shall use commercially reasonable efforts to keep apprised of all events and circumstances (a) that would excuse or prohibit such Bank from performing its obligation to make (or to Convert Advances into) Eurodollar Rate Advances hereunder pursuant to Section 5.01(a) , or (b) that would permit such Bank to demand additional interest or increased costs pursuant to Section 5.08 or Section 5.13 . Such Bank shall, as soon as practicable after becoming aware of any such event or circumstance, use commercially reasonable efforts, to the extent permitted by law, to perform its obligations to make Eurodollar Rate Advances through another office or lending office, and with respect to increased costs or additional interest, to reduce such increased costs or additional interest (if the use of such other office or lending office or such reduction would not adversely affect the performance of such obligations or repayment of the Advances or result in, in any material respect, any increased cost, loss, liability or other material disadvantage to such Bank in such Bank’s reasonable judgment), in either case if by taking the action contemplated by the foregoing, such event or circumstance would cease to exist.

SECTION 5.12. Optional Prepayments .

(a) The Borrower may prepay Borrowings without penalty upon notice to the Administrative Agent given not later than 9:00 a.m. (Chicago time) on (i) the proposed date of prepayment of Borrowings comprised solely of Base Rate Advances and (ii) the date one Business Day prior to the proposed date of prepayment of Borrowings comprised solely of Eurodollar Rate Advances by facsimile, stating in such notice the proposed date and aggregate principal amount of the prepayment, and if such notice is given, the Borrower shall prepay the outstanding principal amount of the Advances made as part of the same Borrowing in whole or, in the case of a Borrowing comprised solely of Base Rate Advances, ratably in part, by paying the principal amount to be prepaid together with accrued interest thereon and other amounts then due and owing, if any, hereunder to the date of prepayment; provided that each partial prepayment shall be in an amount equal to $20,000,000 or a higher integral multiple of $5,000,000 (or, with respect to Swingline Loans, in an aggregate amount equal to $1,000,000 (or a higher integral multiple of $500,000); provided , further , that if any Borrowing made pursuant to Section 4.06 does not meet the minimum amount or integral multiple requirements for prepayments set forth above, then the next prepayment pursuant to this Section 5.12 shall be in an amount that will cause each outstanding Borrowing (other than any Swingline Loan) to be in an aggregate amount equal to $20,000,000 or a higher integral multiple of

 

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$5,000,000. Each such optional prepayment shall be applied to prepay ratably the Advances of the several Banks included in such Borrowing. If the Borrower prepays any Borrowing consisting of Eurodollar Rate Advances on any day other than the last day of an Interest Period therefor, the Borrower shall reimburse each Bank for any losses, costs and expenses contemplated in Section 11.04(b) .

(b) Upon receipt of a notice of prepayment pursuant to this Section 5.12 , the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share, if any, of such prepayment.

SECTION 5.13. Increased Costs . Subject to Section 5.11 , if, after the date of this Agreement, any of the following (a “ Change in Law ”) shall occur:

(a) due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements included in the Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), either (x) there shall be any increase in the cost to any Bank of agreeing or committing to make or making, funding or maintaining any Advances (including any participations in Swingline Loans) hereunder or issuing or participating in any Letter of Credit or (y) any Recipient shall be subject to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(b) either (i) the introduction of or any change in or in the interpretation of any law, rule, regulation or guideline adopted after the date hereof and arising out of the July 1988 report of the Basel Committee on Banking Regulation and Supervisory Practices entitled “International Convergence of Capital Measurement and Capital Standards” or (ii) compliance by any Bank with any law or regulation, or with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or any corporation controlling such Bank and such Bank determines that the amount of such capital or liquidity is increased by or based upon the existence of such Bank’s commitment to lend hereunder and other commitments of this type, or upon the making or funding of its Advances (including any participations in Swingline Loans) hereunder or upon the issuing or maintaining of its L/C Interest hereunder,

then the Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank, within 120 days after such written demand, additional amounts sufficient to (i) in the case of any of the events described in clause (a) above, reimburse such Bank for such increased cost, such increased cost to be determined by such Bank using its customary methods therefor (and, if such Bank uses from time to time more than

 

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one such method, the method chosen for application hereunder shall be that method which most accurately determines such increased cost), and (ii) in the case of any of the events described in clause (b) above, compensate such Bank in light of such circumstances, to the extent such Bank reasonably determines such increase in capital or liquidity to be allocable to the existence of such Bank’s commitment to lend or maintain Advances or to issue or maintain its L/C Interests hereunder. A certificate as to any such amount (demonstrating, in reasonable detail, the calculations used by such Bank to determine such amount), submitted to the Borrower and the Administrative Agent by such Bank, shall be prima facie evidence thereof. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued or implemented.

Failure or delay on the part of any Bank or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bank’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Bank or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 120 days prior to the date that such Bank or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Bank’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 5.14. Payments and Computations .

(a) The Borrower shall make all payments hereunder in Dollars. All payments hereunder shall be made to the Administrative Agent at (except as set forth in the next sentence) the Administrative Agent’s address specified in Section 11.02 , or at any other Applicable Lending Office of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, and, in the case of Borrowings, shall be applied ratably by the Administrative Agent among the Banks. The Administrative Agent is hereby authorized to charge the Borrower’s account with the Administrative Agent, after notice to the Borrower of the amount to be charged, for each payment of principal, interest and fees as such payment becomes due. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to such payment ratably (in accordance with all like obligations then due and payable to which such payment relates) to the Banks for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Bank, to such Bank for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.

 

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(b) All computations of interest based on the Base Rate shall, to the extent such Base Rate is determined by reference to the Prime Rate, be made on the basis of a year of 365 or 366 days, as the case may be, and all other calculations of interest, the Facility Fee and Letter of Credit Fee shall be made on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

(c) Whenever any payment hereunder or under any Note shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, Facility Fees and Letter of Credit Fees, as the case may be. If such extension would cause such payment with respect to a Eurodollar Rate Advance to be made in the next following calendar month, such payment shall be made on the immediately preceding applicable Business Day and the period of time during which such payment would have been outstanding but for compliance with this provision shall not be included in the computation of payment of interest with respect thereto.

(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Banks hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due such Bank. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.

SECTION 5.15. Taxes . (a) Any and all payments by or on account of any obligation of the Borrower under this Agreement or under any Notes shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

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(b) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c) The Borrower shall indemnify each Recipient, within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive absent manifest error.

(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 11.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with this Agreement or any Note, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under this Agreement or any Note or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this paragraph (d).

(e) As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 5.15 , the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f) (i) Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Agreement or any Note shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable

 

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law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.15(f)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank.

(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower:

(A) any Bank that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;

(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(i) in the case of a Foreign Bank claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement or any Note, executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement or any Note, IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8ECI;

(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent

 

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shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8BEN-E; or

(iv) to the extent a Foreign Bank is not the beneficial owner, executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;

(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Bank under this Agreement or any Note would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

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(iii) Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(g) Any Bank claiming additional amounts payable pursuant to this Section 5.15 shall (at the reasonable request of the Borrower) use reasonable efforts to change the jurisdiction of its office or Applicable Lending Office if the making of such change would avoid the need for, or reduce the amount of, any additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Bank, subject such Bank to any unreimbursed costs or expense and would not be otherwise materially disadvantageous to such Bank. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Bank in connection with any such actions.

(h) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.15 (including additional amounts paid pursuant to this Section 5.15 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.15 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnified party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.15(h) , in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 5.15(h) if such payment would place such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and if the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 5.15(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.

(i) Each party’s obligations under this Section 5.15 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Bank, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations under this Agreement or any Notes.

SECTION 5.16. Noteless Agreement; Evidence of Indebtedness .

(a) Each Bank shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Bank resulting from each Advance made by such Bank from time to time, including the amounts of principal and interest payable and paid to such Bank from time hereunder.

 

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(b) The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Advance made hereunder, Type thereof and the Interest Period, if any, with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Bank hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Bank’s share thereof.

(c) The entries maintained in the accounts maintained pursuant to subsections (a) and (b)  above shall be prima facie evidence of the existence and amounts of the Advances therein recorded; provided , however , that the failure of the Administrative Agent or any Bank to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Borrowings in accordance with their terms.

(d) Any Bank may request that its Advances be evidenced by a promissory note (each, a “ Note ”). In such event, the Borrower shall prepare, execute and deliver to such Bank a Note or separate Notes evidencing such Advances, at such Bank’s request, payable to such Bank in a form or forms supplied by the Administrative Agent. Thereafter, the Advances evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 11.06 ) be represented by one or more Notes payable to the payee named therein or any assignee pursuant to Section 11.06 , except to the extent that any such Bank or assignee subsequently returns any such Note for cancellation and requests that such Advances once again be evidenced as described in subsections (a)  and (b)  above.

SECTION 5.17. Sharing of Payments, Etc . Except for payments made pursuant to Section 5.18 , if any Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of principal of or interest on any Advance (including any participation in a Swingline Loan) made by it or any L/C Interest in excess of its ratable share of all payments obtained by Banks on account of, as applicable, principal of or interest on the Advances (including any participation in a Swingline Loan) comprising the Borrowing to which such Advance relates or in respect of the Letter of Credit to which such L/C Interest relates, such Bank shall forthwith purchase from the other Banks which shall then have Advances (including any participation in a Swingline Loan) outstanding comprising a part of such Borrowing participations in the Advances (including any participation in a Swingline Loan) comprising a part of such Borrowing (or, as applicable, purchase from the other Banks participations in the Swingline Loans or L/C Interests in the related Letter of Credit) as shall be necessary to cause such purchasing Bank to share the excess payment (net of any expenses which may be incurred by such Bank in obtaining or preserving such excess payment) ratably with respect to such Borrowing or Letter of Credit with each of such other Banks. If all or any portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase from each selling Bank shall be rescinded and such selling Bank shall repay to the purchasing Bank the purchase price to the extent of such recovery together with an amount equal

 

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to such selling Bank’s ratable share (according to the proportion of (i) the amount of such selling Bank’s required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered. The Borrower agrees that any Bank so purchasing a participation from another Bank pursuant to this Section 5.17 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of the Borrower in the amount of such participation. Nothing contained herein shall require any Bank to exercise any right it may have of set-off, bankers’ lien, counterclaim or similar right or shall affect the right of any Bank to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower not evidenced by this Agreement or the Notes. If under any applicable bankruptcy, insolvency or other similar law, any Bank obtains a secured claim in lieu of a set-off or other payment to which this Section 5.17 would apply, such Bank shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Banks entitled under this Section 5.17 to share in the benefits of any recovery on such secured claim.

SECTION 5.18. Termination and Prepayment with Respect to any Bank .

(a) In addition to the right of the Borrower to terminate in whole or reduce ratably the unused portion of the Commitments as described in Section 5.05 and the right of the Borrower to ratably prepay Advances (including any participation in a Swingline Loan) as described in Section 5.12 , the Borrower shall have the right to terminate the unused portion of the Commitment of any Bank and to prepay all outstanding Advances made by such Bank in the manner described in this Section 5.18 if a Bank becomes a Defaulting Bank or a Non-Consenting Bank or if the Borrower shall have received notice (a “ Special Notice ”) that such Bank (i) cannot extend a Eurodollar Rate Advance and shall exercise its rights pursuant to Section 5.01(a) , (ii) claims additional interest pursuant to Section 5.08 , (iii) claims reimbursement for increased costs or reduced returns pursuant to Section 5.13 or (iv) claims reimbursement for Taxes pursuant to Section 5.15 .

(b) Upon receipt by the Borrower of a Special Notice from any Bank or upon a Bank becoming a Defaulting Bank or a Non-Consenting Bank, the Borrower may elect to terminate the unused portion of the Commitment of such Bank by giving notice thereof (a “ Termination Notice ”) to such Bank and to the Administrative Agent as follows: (1) in the case of a Non-Consenting Bank or a Bank which delivers a Special Notice, on or before the thirtieth day following the date such Bank becomes a Non-Consenting Bank or delivers such Special Notice, or (2) in the case of a Defaulting Bank, after the date such Bank becomes a Defaulting Bank and while it remains a Defaulting Bank, in each case specifying therein (i) the name of such Bank (a “ Terminated Bank ”), (ii) the proposed effective date of termination (“ Bank Termination Date ”) of the unused portion of such Terminated Bank’s Commitment, which date shall not in any event be less than five (5) Business Days following the date of such Termination Notice, and (iii) if applicable, one or more commercial banks (each, a “ Successor Bank ”), each such Successor Bank having a combined capital, surplus (or its equivalent) and undivided profits in an amount not less than U.S. $500,000,000 (or its equivalent in another currency), which Successor Bank or Successor Banks shall have agreed, in the aggregate, to succeed to the entire Commitment of such Terminated Bank on the Bank Termination Date.

 

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(c) Unless the Borrower shall have elected, as evidenced by its Termination Notice, to prepay all the Advances (including any participation in a Swingline Loan) made by a Terminated Bank outstanding as of the Bank Termination Date, any Eurodollar Rate Advance (including any participation in a Swingline Loan) (each, a “ TB Advance ”) made by such Terminated Bank having an Interest Period ending after the Bank Termination Date shall remain outstanding until the last day of such Interest Period (unless required to be paid earlier in accordance with the terms of this Agreement). On the last day of the then current Interest Period in respect of each TB Advance, the Successor Bank shall extend an Advance to the Borrower in a principal amount corresponding to such TB Advance, and having an Interest Period of the type specified in the Notice of Interest Rate Election that would otherwise have applied to such TB Advance, and the proceeds of such Advance from the Successor Bank shall be used by the Borrower to repay such TB Advance to the Terminated Bank. The Successor Bank or Successor Banks specified by the Borrower in a Termination Notice shall have agreed, prior to the Bank Termination Date, to succeed, in the aggregate, to the entire Commitment of such Terminated Bank on the Bank Termination Date which succession shall, with respect to the unused portion of such Terminated Bank’s Commitment as of such Bank Termination Date, become effective as of the Bank Termination Date and, with respect to the remaining portion of such Terminated Bank’s Commitment, become effective as and when such Terminated Bank’s Advances (including any participation in a Swingline Loan) are repaid.

(d) If the Borrower shall have elected, as evidenced by its Termination Notice, to prepay all the Advances (including any participation in a Swingline Loan) made by a Terminated Bank outstanding as of the Bank Termination Date, the Successor Bank or Successor Banks shall in the aggregate extend to the Borrower, on the Bank Termination Date, Advances (including any participation in a Swingline Loan) (with interest at a rate to be agreed upon by the Borrower and each Successor Bank) corresponding in respective amounts to each Advance being prepaid as of such date, each of which Advances shall have an Interest Period, if any, beginning on the Bank Termination Date and ending on the last day of the Interest Period of the Advance being prepaid to which it corresponds.

(e) Each such termination pursuant to this Section 5.18 shall be effective on the Bank Termination Date proposed by the Borrower in the related Termination Notice if (i) no Event of Default shall have occurred prior to such date and be continuing on such date, (ii) in the event the Borrower shall have elected to prepay all Advances (including any participation in a Swingline Loan) made by such Terminated Bank outstanding as of such date, (A) the Borrower shall have prepaid the outstanding aggregate amount of all Advances made by the Terminated Bank, together with accrued interest to such date on the amount prepaid and all other amounts payable to such Bank as of such date and (B) the Successor Bank or Successor Banks shall have extended to the Borrower Advances equal in aggregate amount to the Advances of the Terminated Bank being

 

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prepaid as required pursuant to Section 5.18(d) , and (iii) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that the Successor Bank or Successor Banks shall have agreed in the aggregate to succeed to the entire Commitment of the Terminated Bank in accordance with this Section 5.18 . On a Bank Termination Date, the applicable Successor Bank (or Successor Banks, as applicable) shall succeed to the L/C Interests of the Terminated Bank, and the Terminated Bank shall thereafter cease to have any L/C Interest or any participation in, or liability for any drawings made under, any Letter of Credit.

(f) Subject to subsection (e) above, on the Bank Termination Date, (i) each Successor Bank shall become a party to this Agreement as if such Successor Bank shall have been named on the signature pages hereof, and such Successor Bank shall have all the rights and obligations of a “Bank” hereunder and (ii) the Terminated Bank shall have no further Commitment under this Agreement (other than with respect to Advances, if any, made by such Bank which remain outstanding after such date) and shall no longer be a “Bank” under this Agreement for any purpose (other than with respect to Advances made by such Bank which remain outstanding after such date) except insofar as it shall be entitled to any payment or indemnification, or be obligated to make any indemnification, on account of any event which shall have occurred, or any right or liability which shall have arisen, on or prior to the date of repayment of such outstanding Advances (including any participation in a Swingline Loan). The termination of any Bank’s Commitment and the prepayment of such Bank’s Advances pursuant to this Section 5.18 shall not relieve or satisfy the obligations of the Borrower to make any such prepayments free and clear of all Indemnified Taxes, to reimburse such Bank for all Other Taxes and for all increased costs pursuant to Section 5.13 , or to comply with all other terms and conditions of this Agreement (including Section 11.04 ).

SECTION 5.19. Defaulting Banks . Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank then the following provisions shall apply for so long as such Bank is a Defaulting Bank:

(a) Fees shall cease to accrue on the unfunded Commitment of such Defaulting Bank pursuant to Section 5.04(a) . Each Defaulting Bank shall be entitled to receive Letter of Credit Fees under Section 5.04(b) for any period during which such Bank is a Defaulting Bank only to the extent allocable to its L/C Exposure of the stated amount of Letters of Credit for which it has provided cash collateral to the Administrative Agent.

(b) The Commitments and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.01 ) which requires Majority Banks consent.

(c) All or any part of any Swingline Exposure or L/C Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent such reallocation does not cause any

 

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non-Defaulting Bank to exceed its Commitment; provided that if such reallocation cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize for the benefit of each Issuing Bank the Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation described in this clause (c) ) in accordance with the procedures set forth in Section 9.02 for so long as such L/C Exposure is outstanding. Notwithstanding the foregoing, reallocation of Swingline Exposure or L/C Exposure in accordance with the terms of this Agreement shall not constitute a waiver or release of claims against any such Defaulting Bank.

(d) If the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (c)  above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is so cash collateralized.

(e) If the L/C Exposure of the non-Defaulting Banks are reallocated pursuant to clause (c)  above, then the fees payable to the Banks pursuant to Sections 5.04(a) and (b)  shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages.

(f) If all or any portion of such Defaulting Bank’s L/C Exposure is neither cash collateralized nor reallocated pursuant to clause (c)  above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Bank hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Exposure) and Letter of Credit Fees payable under Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure shall be payable, on a pro rata basis, to the Issuing Banks until each such L/C Exposure is cash collateralized and/or reallocated.

(g) So long as such Bank is a Defaulting Bank, no Swingline Banks shall be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless, in each case, the applicable Swingline Bank or Issuing Bank is satisfied that the related exposure will be 100% covered by the non-Defaulting Banks, cash collateral provided pursuant to clause fifth of Section 5.19(h) below and/or cash collateral provided by the Borrower in accordance with Section 5.19(c) .

(h) Any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 11.05 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any

 

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amounts owing by such Defaulting Bank to any Swingline Bank or Issuing Bank hereunder; third , to cash collateralize the Issuing Banks’ exposure with respect to such Defaulting Bank; fourth as the Borrower may request (so long as no Event of Default or Unmatured Event of Default exists), to the funding of any Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Issuing Banks’ future exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth , to the payment of any amounts owing to the Banks, the Swingline Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Swingline Banks or the Issuing Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; seventh , so long as no Event of Default or Unmatured Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth , to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances or Reimbursement Obligations in respect of which such Defaulting Bank has not fully funded its proportionate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Advances and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Banks pro rata in accordance with the Commitments without giving effect to Section 5.19(c) . Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.

(i) In the event that the Administrative Agent, the Borrower, each Swingline Bank and each Issuing Bank agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Aggregate Revolving Credit Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the loans of the other Banks (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such loans in accordance with its Applicable Percentage.

(j) The Borrower may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Banks thereof), and in such event the provisions of Section 5.19(c) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Bank under this Agreement (whether on

 

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account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank, any Swingline Bank or any Bank may have against such Defaulting Bank.

ARTICLE VI

CONDITIONS PRECEDENT

SECTION 6.01. Conditions Precedent to Effectiveness of Agreement . The effectiveness of this Agreement and the obligation of each Bank to make its initial Advance or for an Issuing Bank to issue the initial Letter of Credit hereunder (whichever shall first be requested by the Borrower) is subject to the condition precedent that the Administrative Agent shall have received all of the following:

(a) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and any Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and any Notes.

(b) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and any Notes and the other documents or certificates to be delivered pursuant to this Agreement.

(c) A certificate, signed by the chief financial officer of the Borrower, stating that as of the date hereof (i) all representations and warranties in this Agreement are correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) as of such earlier date, (ii) no Event of Default or Unmatured Event of Default has occurred and is continuing, (iii) there are no unreimbursed drawings under any Existing Letter of Credit and (iv) the condition set forth in subparagraph (f) below has been satisfied.

(d) A favorable opinion of the General Counsel or Associate General Counsel of the Borrower in form and substance reasonably satisfactory to the Administrative Agent.

(e) The Banks, the Administrative Agent and the Co-Lead Arrangers shall have received all fees required to be paid, and all expenses for which invoices have been presented at least one Business Day prior to the Closing Date, on the Closing Date.

(f) The Spin Off shall have been, or substantially concurrently will be, consummated on terms substantially consistent with the Form 10.

 

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(g) The Borrower shall have paid (or shall concurrently pay) all amounts owing under the Existing US Facility (other than contingent reimbursement obligations with respect to Existing Letters of Credit).

(h) All commitments under the Existing Euro Facility shall have been (or shall concurrently be) terminated and all amounts owing thereunder (other than contingent reimbursement obligations with respect to letters of credit deemed reissued under a successor credit agreement) shall have been (or shall concurrently be) paid in full.

(i) The Banks shall have received such other documents and other instruments as are customary for transactions of this type or as they may reasonably request.

SECTION 6.02. Conditions Precedent to Each Credit Extension . The obligation of each Bank to make any Credit Extension (including the initial Credit Extension) shall be subject to the additional conditions precedent that on the date of such Credit Extension, immediately before and after giving effect to such Credit Extension (and, in the case of a Borrowing, to the application of proceeds therefrom) the following statements shall be true (and each of (a) the giving of a Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing and (b) the submission of a request for issuance of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower that on the date of the applicable Credit Extension, immediately before and after giving effect thereto (and, in the case of a Borrowing, to the application of the proceeds therefrom), such statements are true):

(i) The representations and warranties contained in Section 7.01 (other than subsections  (e)(i) , (f)  and (i)  thereof) are correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) on and as of the date of such Credit Extension as though made on and as of such date (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, shall be true and correct in all respects) as of such earlier date);

(ii) No event has occurred and is continuing, or would result from such Credit Extension (or, in the case of a Borrowing, from the application of the proceeds therefrom), which constitutes an Event of Default or an Unmatured Event of Default; and

(iii) The Aggregate Revolving Credit Exposure at such time does not exceed the Aggregate Commitments at such time,

and (b) the Administrative Agent shall have received such other documents as any Bank through the Administrative Agent may reasonably request related to clause (a)(i) or (a)(ii) above.

 

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ARTICLE VII

REPRESENTATIONS AND WARRANTIES

SECTION 7.01. Representations and Warranties of the Borrower . The Borrower represents and warrants as follows:

(a) Corporate Existence and Standing . The Borrower and each Material Subsidiary is duly organized, validly existing and, to the extent such concept is relevant, in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which the failure so to qualify would have a material adverse effect on the financial condition or operations of the Borrower.

(b) Authorization; No Violation . The execution, delivery and performance by the Borrower of this Agreement and the Notes are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) any law or any contractual restriction binding on or affecting the Borrower.

(c) Governmental Consents . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes.

(d) Validity . This Agreement is, and any Notes when delivered will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) Litigation . Except as disclosed by the Borrower in its SEC filings prior to the date hereof, there is no pending or, to the knowledge of the Borrower, threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, (i) which could reasonably be expected to have a material adverse effect on the financial condition or operations of the Borrower or (ii) which could reasonably be expected to affect the legality, validity or enforceability of this Agreement or any Note to be delivered by it.

(f) Financial Statements; No Material Adverse Change . The Consolidated balance sheet at December 31, 2014, and the related Consolidated statements of income, cash flows and shareholder’s equity and comprehensive income for the period then ended of the Borrower and its Consolidated Subsidiaries filed by the Borrower with the SEC present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries at December 31, 2014, and the results of the operations and

 

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cash flows of the Borrower and its Consolidated Subsidiaries for the year then ended, in conformity with GAAP applied on a basis consistent with that of the preceding year. The Consolidated balance sheet at March 31, 2015 and the related Consolidated statements of income and cash flows for the quarter then ended of the Borrower and its Consolidated Subsidiaries filed by the Borrower with the SEC present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries at March 31, 2015 and the results of the operations and cash flows of the Borrower and its Consolidated Subsidiaries for the quarter then ended, in conformity with GAAP consistently applied, subject to the absence of footnotes and year-end audit adjustments. Since December 31, 2014, except as disclosed in filings with the SEC prior to the date of this Agreement or in the Form 10, there has been no material adverse change in such financial condition or operations.

(g) Investment Company Act . The Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

(h) Regulation U . Neither the Borrower nor any of its Subsidiaries is engaged as a substantial part of its activities in the business of purchasing or carrying Margin Stock. The value of the Margin Stock owned directly or indirectly by the Borrower or any Subsidiary which is subject to any arrangement (as such term is used in Section 221.2(g) of Regulation U issued by the Board of Governors of the Federal Reserve System) hereunder is less than an amount equal to twenty-five percent (25%) of the value of all assets of the Borrower and/or such Subsidiary subject to such arrangement.

(i) Environmental Matters . The operations of the Borrower and each Material Subsidiary comply in all material respects with all Environmental Laws, the noncompliance with which would materially adversely affect the financial condition or operations of the Borrower.

(j) Anti-Corruption Laws and Sanctions . The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (i) the Borrower, any Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees, or (ii) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person, except to the extent the Borrower or such Subsidiary is licensed by the appropriate Sanctions-administering authority to engage in the applicable transaction with such Sanctioned Person or is otherwise permitted to do so by U.S. law. No Borrowing or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.

 

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ARTICLE VIII

COVENANTS

SECTION 8.01. Affirmative Covenants of the Borrower . So long as any Advance shall remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, the Borrower will:

(a) Payment of Taxes, Etc . Pay and discharge, and cause each Material Subsidiary to pay and discharge, before the same shall become delinquent, (i) all Taxes, assessments and governmental charges or levies imposed upon it or upon its income, profit or property, and (ii) all lawful claims which, if unpaid, might by law become a lien upon its property; provided , however , that neither the Borrower nor any Material Subsidiary shall be required to pay or discharge any such tax, assessment, charge or claim (A) which is being contested in good faith and by proper proceedings and with respect to which the Borrower shall have established appropriate reserves in accordance with GAAP or (B) if the non-payment thereof is not materially adverse to the financial condition or operations of the Borrower.

(b) Maintenance of Insurance . Maintain, and cause each Material Subsidiary to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by (or, as applicable, self-insure in a manner and to an extent not inconsistent with conventions observed by) companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower or such Material Subsidiary operates.

(c) Preservation of Corporate Existence, Etc . Preserve and maintain, and cause each Material Subsidiary to preserve and maintain, its organizational existence, rights, and franchises, except as otherwise permitted by Section 8.02(c) ; provided , however , that neither the Borrower nor any Material Subsidiary shall be required to preserve any right or franchise if the Board of Directors of the Borrower shall determine that the preservation thereof is no longer desirable in the conduct of business of the Borrower or such Material Subsidiary, as the case may be, and that the loss thereof is not materially adverse to the financial condition or operations of the Borrower.

(d) Compliance with Laws, Etc . Comply, and cause each Material Subsidiary to comply, with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including, all Environmental Laws), noncompliance with which would materially adversely affect the financial condition or operations of the Borrower.

(e) Keeping of Books . Keep, and cause each Material Subsidiary to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Borrower and each Material Subsidiary sufficient to prepare financial statements in accordance with GAAP.

 

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(f) Reporting Requirements . Furnish to the Administrative Agent:

(i) As soon as available and in any event within the earlier of (A) five (5) days after the time period specified by the SEC under the Exchange Act for quarterly reporting or (B) fifty-five (55) days after the end of each of the first three (3) quarters of each fiscal year of the Borrower, a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and a Consolidated statement of income and cash flows (or Consolidated statement of changes in financial position, as the case may be) of the Borrower and its Consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of the Borrower (it being understood that the certification provided by the chief financial officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 is acceptable for this purpose); provided , however , that at any time the Borrower shall be subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, delivery within the time period specified above of copies of the quarterly balance sheets and statements on Form 10-Q of the Borrower and its Consolidated Subsidiaries for such quarterly period as filed with the SEC shall be deemed to satisfy the requirements of this clause (i) ;

(ii) As soon as available and in any event within the earlier of (A) five (5) days after the time period specified by the SEC under the Exchange Act for annual reporting or (B) one hundred (100) days after the end of each fiscal year of the Borrower, a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such year and a Consolidated statement of income, cash flows and shareholder’s equity and comprehensive income of the Borrower and its Consolidated Subsidiaries for such fiscal year and accompanied by a report of PricewaterhouseCoopers LLP, or other independent public accountants of nationally recognized standing, on the results of their examination of the Consolidated annual financial statements of the Borrower and its Consolidated Subsidiaries, which report shall be unqualified as to a “going concern” or like qualification or exception or as to the scope of such audit or shall be otherwise reasonably acceptable to the Majority Banks; provided , further , that at any time the Borrower shall be subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, delivery within the time period specified above of copies of the annual balance sheets and statements on Form 10-K of the Borrower and its Consolidated Subsidiaries for such annual period as filed with the SEC shall be deemed to satisfy the requirements of this clause (ii) ;

(iii) Promptly after the sending or filing thereof, copies of all reports which the Borrower files with the SEC under the Exchange Act; provided , that such quarterly and annual financial statements and reports filed with the SEC required pursuant to clauses (i) , (ii)  and (iii)  above shall be deemed delivered to the Administrative Agent on the earlier of the date such statements or reports are available at (i) www.sec.gov and (ii) the Borrower’s website at www.baxter.com;

 

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(iv) Together with the financial statements required pursuant to clauses (i) and (ii)  above, a certificate signed by the chief financial officer of the Borrower (A) stating that no Event of Default or Unmatured Event of Default exists or, if any does exist, stating the nature and status thereof and describing the action the Borrower proposes to take with respect thereto, and (B) demonstrating, in reasonable detail, the calculations used by such officer to determine compliance with the financial covenants contained in Sections 8.02(c) and 8.02(d) ; and

(v) As soon as possible, and in any event within five (5) Business Days after the Borrower shall become aware of the occurrence of each Event of Default or Unmatured Event of Default, which Event of Default or event is continuing on the date of such statement, a statement of the chief financial officer of the Borrower setting forth details of such Event of Default or event and the action which the Borrower proposes to take with respect thereto.

(g) Use of Proceeds . Use the proceeds of Borrowings made under or Letters of Credit issued in accordance with this Agreement for general corporate purposes not in violation of any applicable law or regulation (including Regulation U and X of the Board of Governors of the Federal Reserve System (the “ Margin Regulations ”)). With respect to any Borrowing the proceeds of which shall be used to purchase or carry Margin Stock, the Borrower shall include in the Notice of Borrowing for such Borrowing such information as shall enable the Banks and the Borrower to comply with the Margin Regulations. The Borrower will not request any Advance or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Advance or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transactions of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent licensed by the appropriate Sanctions-administering authority to engage in the applicable transaction with such Sanctioned Person or, as applicable, in such Sanctioned Country or otherwise permitted by U.S. law, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

(h) Anti-Corruption Policies, Etc. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

 

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SECTION 8.02. Negative Covenants of the Borrower . So long as any Advance shall remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, the Borrower will not:

(a) Liens, Etc . Suffer to exist, create, assume or incur, or permit any of its Material Subsidiaries to suffer to exist, create, assume or incur, any Security Interest, or assign, or permit any of its Material Subsidiaries to assign, any right to receive income, in each case to secure Debt or any other obligation or liability, other than:

(i) Any Security Interest to secure Debt or any other obligation or liability of any Material Subsidiary to the Borrower.

(ii) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith and for which reasonable reserves have been established.

(iii) Any Security Interest arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulation which is required by law or governmental regulation as a condition to the transaction of any business, or the exercise of any privilege, franchise or license.

(iv) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent or Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith and for which reasonable reserves have been established in accordance with GAAP.

(v) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, the related judgment does not constitute an Event of Default under Section 9.01(g) .

(vi) Landlords’ liens on fixtures located on premises leased by the Borrower or one of its Material Subsidiaries in the ordinary course of business.

(vii) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States of America, any state thereof, or any department, agency or instrumentality of the United States or any state thereof for obligations not yet delinquent.

(viii) Any Security Interest arising by reason of deposits to qualify the Borrower or a Subsidiary to conduct business, to maintain self-insurance, or to obtain the benefit of, or comply with, laws.

 

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(ix) Any purchase money Security Interest claimed by sellers of goods on ordinary trade terms provided that no financing statement has been filed to perfect such Security Interest.

(x) The extension of any Security Interest existing as of the date hereof to additions, extensions, or improvements to the property subject to the Security Interest which does not arise as a result of borrowing money or the securing of Debt or other obligation or liability created, assumed or incurred after such date.

(xi) Security Interests on (i) property of a corporation or firm existing at the time such corporation or firm is merged or consolidated with the Borrower or any Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or a firm as an entirety (or the properties of a corporation or firm comprising a product line or line of business, as an entirety) or substantially as an entirety to the Borrower or a Subsidiary; or (ii) property comprising machinery, equipment or real property acquired by the Borrower or any of its Subsidiaries, which Security Interests shall have existed at the time of such acquisition and secure obligations assumed by the Borrower or such Subsidiary in connection with such acquisition; provided that the Security Interests of the type described in this clause (xi) shall not attach to or affect property owned by the Borrower or such Subsidiary prior to the event referred to in this clause (xi) .

(xii) Security Interests arising in connection with the sale, assignment or other transfer by the Borrower or any Material Subsidiary of accounts receivable, lease receivables or other payment obligations (together with rights and assets related thereto, any of the foregoing being a “ Receivable ”) owing to the Borrower or any Subsidiary or any interest in any of the foregoing (together in each case with any collections and other proceeds thereof and any collateral, guaranties or other property or claims in favor of the Borrower or such Subsidiary supporting or securing payment by the obligor thereon of any such Receivables), in each case whether such sale, assignment or other transfer constitutes a “true sale” or a secured financing for accounting, tax or any other purpose; provided that either (i) such sale, assignment or other transfer shall have been made as part of a sale of the business out of which the applicable Receivables arose, (ii) such sale, assignment or other transfer is made in the ordinary course of business and is for the purpose of collection only, (iii) such sale, assignment or other transfer is made in connection with an agreement on the part of the assignee thereof to render performance under the contract that has given rise to such Receivable, or (iv) in all other cases, the aggregate outstanding principal amount of the investment or claim

 

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held by purchasers, assignees or other transferees of (or of interests in) such Receivables (as determined by the Borrower using any reasonable methods as of the time any such investment is made or claim is incurred) shall not exceed an amount equal to ten percent (10%) of the Consolidated total assets of the Borrower and its Consolidated Subsidiaries at such time.

(xiii) Security Interests securing non-recourse obligations in connection with leveraged or single-investor lease transactions.

(xiv) Security Interests securing the performance of any contract or undertaking made in the ordinary course of business (as such business is currently conducted) other than for the borrowing of money.

(xv) Any Security Interest granted by the Borrower or any Material Subsidiary of the Borrower; provided that (i) the property which is subject to such Security Interest is a parcel of real property, a manufacturing plant, manufacturing equipment, a warehouse, or an office building hereafter acquired, constructed, developed or improved by the Borrower or such Material Subsidiary, and (ii) such Security Interest is created prior to or contemporaneously with, or within 120 days after (x) in the case of acquisition of such property, the completion of such acquisition and (y) in the case of the construction, development or improvement of such property, the later to occur of the completion of such construction, development or improvement or the commencement of operations, use or commercial production (exclusive of test and start-up periods) of such property, and such Security Interest secures or provides for the payment of all or any part of the acquisition cost of such property or the cost of construction, development or improvement thereof, as the case may be.

(xvi) Any conditional sales agreement or other title retention agreement with respect to property acquired by the Borrower or any Material Subsidiary.

(xvii) Any Security Interest that secures an obligation owed to the United States of America or any state, territory or possession of the United States of America, any political subdivision of any of the foregoing or the District of Columbia (each, a “ Governmental Entity ”) in connection with a bond or other obligation issued by a Governmental Entity to finance the construction or acquisition by the Borrower or any Material Subsidiary of any manufacturing plant, warehouse, office building or parcel of real property (including fixtures).

 

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(xviii) Any Security Interest in deposits or cash equivalent investments pledged with a financial institution for the sole purpose of implementing a hedging or financing arrangement commonly known as a “back-to-back” loan arrangement, provided in each case that neither the assets subject to such Security Interest nor the Debt incurred in connection therewith are reflected on the Consolidated balance sheet of the Borrower.

(xix) Security Interests of financial institutions as collecting banks or with respect to deposit or securities accounts held at such financial institutions, in each case in the ordinary course of business.

(xx) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Debt or any other obligation or liability secured by any Security Interest referred to in the foregoing clauses (i) through (xix) , provided that the principal amount of Debt or any other obligation or liability secured by such Security Interest shall not exceed the principal amount outstanding immediately prior to such extension, renewal or refunding, and that the Security Interest securing such Debt or other obligation or liability shall be limited to the property which, immediately prior to such extension, renewal or refunding secured such Debt or other obligation or liability and additions to such property.

Notwithstanding the foregoing provisions of this Section 8.02(a) (but without limiting or affecting the provisions of Section 8.02(c) ), the Borrower and its Material Subsidiaries may, at any time, suffer to exist, issue, incur, assume and guarantee Secured Debt (in addition to Secured Debt permitted to be secured under the foregoing clauses (i) through (xx) ), provided that the aggregate amount of such Secured Debt, together with the aggregate amount of all other Secured Debt (not including Secured Debt permitted to be secured under the foregoing clauses (i) through (xx) ) of the Borrower and its Material Subsidiaries which is suffered to exist, issued, incurred, assumed or guaranteed after July 1, 2015 does not at such time exceed ten percent (10%) of Consolidated Net Tangible Assets.

 

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(b) Merger, Etc.

(i) Merge or consolidate with or into, or Transfer Assets to, any Person, except that the Borrower may (A) merge or consolidate with any corporation, including any Subsidiary, which is a U.S. Corporation and (B) Transfer Assets to any Subsidiary which is a U.S. Corporation; provided , in each case described in clause (A) and (B)  above, that (x) immediately after giving effect to such transaction, no event shall have occurred and be continuing which constitutes an Event of Default or Unmatured Event of Default and (y) in the case of any merger or consolidation to which the Borrower shall be a party, the survivor of such merger or consolidation shall be the Borrower.

(ii) Permit any Material Subsidiary to merge or consolidate with or into, or Transfer Assets to, any Person unless, immediately after giving effect to such transaction, no event shall have occurred and be continuing which constitutes an Event of Default or Unmatured Event of Default.

For purposes of this Section 8.02(b) : “ Transfer Assets ” means, when referring to the Borrower, the conveyance, transfer, lease or other disposition (whether in one transaction or in a series of transactions) of all or substantially all of the assets of the Borrower or of the Borrower and its Subsidiaries considered as a whole and means, when referring to a Material Subsidiary, the conveyance, transfer, lease or other disposition (whether in one transaction or in a series of transactions) of all or substantially all of the assets of such Material Subsidiary; and “ U.S. Corporation ” means a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia.

(c) Net Leverage Ratio. Permit the Net Leverage Ratio to be greater than (i) 5.00 to 1.00 at the end of any fiscal quarter until and including December 31, 2015, (ii) 4.75 to 1.00 at the end of the fiscal quarters ending on March 31, 2016, June 30, 2016 and September 30, 2016, (iii) 4.25 to 1.00 at the end of the fiscal quarter ending December 31, 2016 and (iv) 3.50 to 1.00 at the end of any fiscal quarter ending thereafter; provided, however, that the ratio in this clause (iv) shall be increased to 4.00 to 1.00 for the four fiscal quarter ends next following the consummation of any Material Acquisition.

(d) Interest Coverage Ratio. Permit the Interest Coverage Ratio to be less than 3.00 to 1.00 as of the end of each fiscal quarter.

ARTICLE IX

EVENTS OF DEFAULT

SECTION 9.01. Events of Default . If any of the following events (each, an “ Event of Default ,” and, collectively, “ Events of Default ”) shall occur and be continuing:

(a) The Borrower shall fail to (i) pay any installment of interest on any Advance or any Facility Fee payable under Section 5.04(a) , or any Letter of Credit Fee payable under Section 4.07 or Section 5.04(b) , in each case when due and such default continues for five (5) days, or (ii) pay any amount of principal of any Advance or any Reimbursement Obligation when due; or

 

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(b) Any representation or warranty made or deemed made by the Borrower (or any of its officers) in connection with this Agreement or any Advance or Letter of Credit shall prove to have been incorrect in any material respect (or, if any such representation or warranty is qualified by materiality or material adverse effect, in any respect) when made or deemed made; or

(c) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 8.02(a) or Section 8.02(b) of this Agreement on its part to be performed or observed and such failure shall remain unremedied on the earlier to occur of (i) or (ii): (i) the date thirty (30) days after the Borrower shall have become aware of such failure or (ii) the date that financial statements of the Borrower shall be available from which it may be ascertained that such failure to perform or observe such term, covenant or agreement shall have occurred. For purposes of clause (ii) above, the date that any financial statements shall be deemed available shall be the date on which the Borrower shall file (or, if earlier, the date the Borrower shall have been required to file) such financial statements with the SEC as part of any report required to be filed pursuant to the Exchange Act; or

(d) The Borrower shall (i) fail to perform or observe, or shall breach, any other term, covenant or agreement contained in this Agreement on its part to be performed or observed (other than those failures or breaches referred to in subsections (a) , (b) , (c) , (d)(ii) or (d)(iii) of this Section 9.01 ) and any such failure or breach shall remain unremedied for thirty (30) days after written notice thereof has been given to the Borrower by the Administrative Agent at the request of any Bank; (ii) fail to perform or observe Section 8.02(c) , 8.02(d) or the final sentence of Section 8.01(g) ; or (iii) fail to perform or observe Section 8.01(f)(v) and such failure shall remain unremedied for fifteen (15) days after the occurrence thereof; or

(e) The Borrower or any Material Subsidiary shall fail to pay any amount of principal of, interest on or premium with respect to, any Debt (other than that evidenced by this Agreement) of the Borrower or such Subsidiary when due (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) which Debt is outstanding under one or more instruments or agreements in an aggregate principal amount not less than $150,000,000 and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist after the applicable grace period specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a scheduled prepayment), prior to the stated maturity thereof; or

 

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(f) The Borrower or any Material Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower or such Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debt under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property; or the Borrower or any such Material Subsidiary shall take corporate action to authorize any of the actions set forth above in this subsection (f) ; provided that, in the case of any such proceeding filed or commenced against the Borrower or any Material Subsidiary, such event shall not constitute an “Event of Default” hereunder unless either (i) the same shall have remained undismissed or unstayed for a period of sixty (60) days, (ii) an order for relief shall have been entered against the Borrower or such Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect or (iii) the Borrower or such Material Subsidiary shall have taken corporate action consenting to, approving or acquiescing in the commencement or maintenance of such proceeding; or

(g) Any judgment or order for the payment of money shall be rendered against the Borrower or any Material Subsidiary and (i) either (A) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (B) there shall be any period of thirty (30) consecutive days, in the case of a judgment or order rendered or entered by a court during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect, and (ii) the amount of such judgment or order, when aggregated with the amount of all other such judgments and orders described in this subsection (g) , shall exceed $150,000,000; provided that the rendering of any such judgment or order shall not constitute an Unmatured Event of Default; or

(h) Either (i) the PBGC shall institute proceedings under Section 4042 of ERISA to terminate any Plan and such Plan shall have an Unfunded Liability in an amount in excess of $150,000,000 at such time or (ii) withdrawal liability shall be assessed against the Borrower or any Material Subsidiary in connection with any Multiemployer Plan (whether under Section 4203 or Section 4205 of ERISA) and such withdrawal liability shall be an amount in excess of $150,000,000; or

(i) A Change of Control shall occur;

then, in any such event but subject to the next sentence, the Administrative Agent shall at the request, or may with the consent, of the Majority Banks, by notice to the Borrower, (i) declare the obligation of each Bank to make Advances and the obligation of each Issuing Bank to issue Letters of Credit hereunder to be terminated, whereupon the same shall forthwith terminate, (ii) declare the entire unpaid principal amount of the Advances, all interest accrued and unpaid thereon and all other amounts payable under this Agreement (including Reimbursement Obligations) to be forthwith due and payable, whereupon the Advances, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; and (iii) demand delivery of, and promptly following such demand the Borrower shall deliver and pledge to the Administrative Agent (or another Bank selected by the Borrower) for

 

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the benefit of the Banks, cash or other collateral of a type satisfactory to the Majority Banks and having a value, as determined by the Administrative Agent, equal to the aggregate undrawn face amount of the Letters of Credit then outstanding and all fees and other amounts then due. In the event of the occurrence of an Event of Default under Section 9.01(f) , (A) the obligation of each Bank to make Advances and the obligation of each Issuing Bank to issue Letters of Credit hereunder shall automatically be terminated and (B) the Advances, all such interest and all such amounts (including Reimbursement Obligations) shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.

SECTION 9.02. Cash Collateral . Any cash collateral delivered pursuant to Section 9.01 in respect of the outstanding Letters of Credit shall be held by the Administrative Agent or the applicable Bank in a separate interest-bearing account appropriately designated as a cash collateral account in relation to this Agreement and the Letters of Credit and retained by and under the control of the Administrative Agent or the applicable Bank for the benefit of all of the Banks and the Issuing Banks as collateral security for the Borrower’s obligations in respect of this Agreement and each of the Letters of Credit. Amounts held in such account shall be applied on the direction of the Administrative Agent to reimburse the Issuing Banks for drawings or payments under or pursuant to Letters of Credit, or if no such reimbursement is required, to payment of such of the other obligations due and owing hereunder as the Administrative Agent shall determine. If no Event of Default shall be continuing, amounts remaining in any cash collateral account established pursuant to this Section 9.02 , which are not to be applied to reimburse an Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in respect of a Letter of Credit or to payment of such of the other obligations due and owing hereunder, shall be promptly returned to the Borrower upon the Borrower’s request therefor.

ARTICLE X

THE ADMINISTRATIVE AGENT

SECTION 10.01. Authorization and Action . Each Bank hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Banks and such instructions shall be binding upon all Banks and all holders of Notes. The Administrative Agent shall not be required to take any action which exposes it to personal liability or which is contrary to this Agreement or applicable law and shall not be subject to any fiduciary duties.

 

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SECTION 10.02. Duties and Obligations . Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, (i) the Administrative Agent may treat the payee of any Note as the holder thereof unless and until the Administrative Agent receives written notice of the assignment thereof signed by such payee and the Administrative Agent receives the written agreement of the assignee that such assignee is bound hereby as it would have been if it had been an original Bank party hereto, in each case in form satisfactory to the Administrative Agent, (ii) the Administrative Agent may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, and (iii) the Administrative Agent shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties or by acting upon any representation or warranty of the Borrower made or deemed to be made hereunder. Further, the Administrative Agent (A) makes no warranty or representation to any Bank and shall not be responsible to any Bank for the accuracy or completeness of any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (B) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or to inspect the property (including the books and records) of the Borrower, and (C) shall not be responsible to any Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto.

SECTION 10.03. Administrative Agent and Affiliates . With respect to its Commitment, the Advances made by it and the Notes issued to it, the Administrative Agent, in its separate capacity as a Bank, shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or “Banks” shall, unless otherwise expressly indicated, include the Administrative Agent in its separate capacity as a Bank. The Administrative Agent, in its separate capacity as a Bank, and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, participate in Letters of Credit issued to and generally engage in any kind of business with, the Borrower, any Subsidiary and any Person which may do business with or own securities of the Borrower or any Subsidiary, all as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Banks.

SECTION 10.04. Bank Credit Decision . Each Bank agrees that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrower. Accordingly, each Bank confirms to the Administrative Agent that such Bank has not relied, and will not hereafter rely, on the Administrative Agent, or any other Bank, (i) to check or inquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower under or in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter distributed to such Bank by the Administrative Agent), (ii) to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrower or (iii) in entering into this Agreement or in making its own credit decisions with respect to the taking or not taking of any action under this Agreement.

 

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SECTION 10.05. Indemnification . The Banks agree to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower) ratably according to the respective principal amounts of the Commitments then held by each of them (or if the Commitments have at the time been terminated, ratably according to the amounts of their Advances then outstanding), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement, provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct. Without limiting the generality of the foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification or amendment of this Agreement or preservation of any rights of the Administrative Agent or the Banks under, or the enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrower.

SECTION 10.06. Sub-Agents . The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and other provisions of this Article X shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent.

SECTION 10.07. Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Banks and the Borrower. Upon any such resignation of the Administrative Agent, the Majority Banks shall have the right to appoint a successor Administrative Agent to assume the position as Administrative Agent of the retiring Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be either a Bank hereunder or a commercial bank organized or licensed under the laws of the United States or of any state thereof and having a

 

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combined capital and surplus of at least $500,000,000. The Borrower shall have the right to approve any successor Administrative Agent, which approval shall not be unreasonably withheld (in all such cases the Borrower shall be entitled to take into account its past and then existing commercial banking relationships, among other things); provided that if an Event of Default shall have occurred, such right of the Borrower to approve the successor Administrative Agent shall be suspended during the continuance of such Event of Default. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

SECTION 10.08. Syndication Agents and Co-Lead Arrangers . None of the Banks identified on the cover page or signature pages of this Agreement as the “Syndication Agents” or “Co-Lead Arrangers” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Banks as such. Each Bank acknowledges that it has not relied, and will not rely, on any of the Banks identified as Syndication Agents or Co-Lead Arrangers in deciding to enter into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.

ARTICLE XI

MISCELLANEOUS

SECTION 11.01. Amendments, Etc .

(a) Subject to the further terms of this Section 11.01 , no amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following: (a) waive any of the conditions specified in Section 6.01 , (b) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances and L/C Obligations, or the number of Banks, which shall be required for the Banks or any of them to take any action hereunder, or amend the definition herein of “Majority Banks,” or (c) amend this Section 11.01 . No amendment, waiver or consent shall: (i) change the Commitments of any Bank or subject any Bank to any additional obligations without the written consent of such Bank, (ii) reduce the principal of, or interest on, the Advances or the Reimbursement Obligations or any Facility Fees, Letter of Credit Fees or other amount payable hereunder without the written consent of each Bank directly affected thereby, provided , however , that only the consent of the Majority Banks shall be necessary to amend Section 5.09 or to waive any obligation of the Borrower to pay

 

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interest at the rate specified in such Section 5.09 or (iii) change any date fixed for any payment in respect of principal of, or interest on, the Advances or the Reimbursement Obligations or any Facility Fees, Letter of Credit Fees or other amount payable hereunder without the written consent of each Bank directly affected thereby. No amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Banks required hereinabove to take such action, affect the rights or duties of the Administrative Agent under this Agreement. No amendment, waiver or consent shall, without the consent of each Swingline Bank or Issuing Bank affected thereby, amend, modify or waive any provision of Article III , Article IV or alter any rights or obligations with respect to any Swingline Loan or Letter of Credit issued by such Swingline Bank or Issuing Bank. Notwithstanding the foregoing, the actions contemplated by Section 2.05 shall not be subject to the consent of the Banks, except as otherwise expressly provided in such Section 2.05 .

(b) Notwithstanding the foregoing, no amendment or amendment and restatement of this Agreement which is in all other respects approved by the Banks in accordance with this Section 11.01 shall require the consent or approval of any Bank (i) which immediately after giving effect to such amendment or amendment and restatement, shall have no Commitment or other obligation to maintain or extend credit under this Agreement (as so amended or amended and restated), including any obligation in respect of any drawing under or participation in any Letter of Credit and (ii) which, substantially contemporaneously with the effectiveness of such amendment or amendment and restatement, shall have been paid in full all amounts owing to it hereunder (including principal, interest and fees). From and after the effectiveness of any such amendment or amendment and restatement, any such Bank shall be deemed to no longer be a “Bank” hereunder or a party hereto; provided, that any such Bank shall retain the benefit of indemnification and other provisions hereof which, by the terms hereof would survive a termination of this Agreement.

SECTION 11.02. Notices, Etc .

(a) All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows: if to the Borrower, at the address set forth for the Borrower on the signature pages hereof; if from the Borrower to the Administrative Agent or any Bank, to the Administrative Agent at the address set forth for the Administrative Agent on the signature pages hereof; if from the Administrative Agent to any Bank, at the address of such Bank’s Domestic Lending Office or, in the case of a notice or communication relating to information delivered under Section 8.01(f) , by posting on an Internet website established by the Administrative Agent with Intralinks, Inc. or other similarly available electronic media; or, in any case, at such other address as shall be designated by such party in a written notice to the other parties hereto (except in the case of the Borrower, as to which a change of address may be made by notice to the Administrative Agent on behalf of the Banks and except in the case of any Bank, as to which a change of address may be made by notice to the Administrative Agent). Subject to the next sentence, notices sent by hand or overnight

 

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courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and communications (i) pursuant to Articles II and X shall not be effective until they are received by the addressee during its normal business hours; and (ii) sent by facsimile to the Borrower shall not be effective until the sender has received confirmation of receipt (either in writing or by telephone from the intended recipient or electronically). The Administrative Agent agrees to deliver promptly to each Bank copies of each report, document, certificate, notice and request, or summaries thereof, which the Borrower is required to, and does in fact, deliver to the Administrative Agent in accordance with the terms of this Agreement, including copies of any reports to be delivered by the Borrower pursuant to Section 8.01(f) .

(b) Notices and other communications to the Banks and the Issuing Banks hereunder may be delivered or furnished by electronic communication (including e mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Bank or any Issuing Bank pursuant to Article II, III or IV if such Bank or such Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article II, III or IV by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

(c) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to a Bank’s e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the such Bank (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of such Bank, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for such Bank, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received by a Bank upon the deemed receipt by such Bank at its e-mail address as described in the foregoing clause (i)  of notification that such notice or communication is available and identifying the website address therefor.

SECTION 11.03. No Waiver; Cumulative Remedies . No failure on the part of the Administrative Agent or any Bank to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver hereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

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SECTION 11.04. Costs and Expenses; Indemnification .

(a) The Borrower agrees to reimburse on demand the Administrative Agent, the Syndication Agents and the Co-Lead Arrangers for all reasonable and documented out-of-pocket costs and expenses (including, subject to such limits as may be agreed to in writing by the applicable parties from time to time, the reasonable and documented fees, time charges and expenses of one law firm for the Administrative Agent, the Syndication Agents and the Co-Lead Arrangers, and, with the prior written consent of the Borrower (such consent not to be unreasonably withheld), any special or local counsel deemed appropriate by such law firm) incurred by the Administrative Agent, the Syndication Agents and the Co-Lead Arrangers in connection with the preparation, negotiation, distribution through e-mail or secured website, execution, syndication and enforcement of this Agreement, the Notes, if any, and the other documents to be delivered hereunder or contemplated hereby; provided , however , that such out-of-pocket costs and expenses of the Administrative Agent, the Syndication Agents and the Co-Lead Arrangers through the date of execution of this Agreement shall only be payable as set forth in a separate fee letter (if any) executed and delivered prior to the effective date of this Agreement by the Administrative Agent, the Syndication Agents, the Co-Lead Arrangers and the Borrower. The Borrower further agrees to pay on demand all direct out-of-pocket losses, and reasonable out-of-pocket costs and expenses, if any (including reasonable fees and out-of-pocket expenses of outside counsel), of the Administrative Agent, any Issuing Bank, any Swingline Bank and any Bank in connection with the enforcement (whether by legal proceedings, negotiation or otherwise) of this Agreement, the Notes, if any, and the other documents delivered hereunder; provided that the Borrower shall not be obligated to pay the fees, time charges and expenses of any counsel other than (i) a single counsel for the Administrative Agent, (ii) a single counsel for the Banks, (iii) any local or special counsel reasonably determined to be necessary by the counsel referred to in clause (i) or (ii) above, and (iv) any additional counsel reasonably determined to be necessary by any counsel for the Banks pursuant to clause (ii) or (iii) above due to an actual or potential conflict of interest.

(b) If (i) due to payments made by the Borrower due to acceleration of the maturity of the Advances pursuant to Section 9.01 or due to any other reason, any Bank receives payments of principal of any Eurodollar Rate Advance, or any Eurodollar Rate Advance is Converted to a Base Rate Advance, in each case other than on the last day of the Interest Period for such Advance or (ii) the Borrower fails to borrow, convert, continue or prepay any Eurodollar Rate Advance on the date specified in any notice delivered by it pursuant hereto, the Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional direct out-of-pocket losses, costs or expenses which it may reasonably incur as a result of such payment, Conversion or failure, including, any such loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund or maintain such Advance; provided that the amount of such loss, cost or expense shall not exceed the amount determined by such Bank to be the excess, if any, of (i) the amount of interest

 

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that would have accrued on a principal amount equal to such Advance, at the Eurodollar Rate applicable to such Advance, for the period from the date of such payment to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Advance) (in either such case, the “Relevant Period”), over (ii) the amount of interest that would accrue on such principal amount for the Relevant Period at the interest rate that such Bank would bid, were it to bid at the commencement of the Relevant Period, for deposits in Dollars in a comparable amount and for the Relevant Period from other banks in the London interbank market. For purposes of calculating amounts payable by the Borrower to a Bank under this Section 11.04(b) , each Bank shall be deemed to have funded each Eurodollar Rate Advance made by it at the Eurodollar Rate for such Advance by a matching deposit or other borrowing in the London interbank market for such currency for a comparable amount and for a comparable period.

(c) Subject to the next sentence, the Borrower agrees to indemnify and hold harmless the Administrative Agent, each Issuing Bank, each Swingline Bank, each Bank, their respective Affiliates and each of the foregoing’s respective directors, officers and employees from and against any and all claims, damages, liabilities and out-of-pocket expenses (including reasonable fees and out-of-pocket expenses of outside counsel) which may be incurred by or asserted against the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank or any such director, officer or employee in connection with or arising out of any investigation, litigation, or proceeding (whether or not any such claim, litigation, investigation or proceeding is brought by the Borrower, its equity holders, its Affiliates, its creditors or any other Person) (i) related to this Agreement, any transaction or proposed transaction (whether or not consummated) contemplated hereby or in which any proceeds of any Borrowing are applied or proposed to be applied, directly or indirectly, by the Borrower, whether or not the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank or any such director, officer or employee is a party to such transactions or (ii) related to the Borrower’s entering into this Agreement, or to any actions or omissions of the Borrower, any of its Subsidiaries or Affiliates or any of its or their respective officers, directors or employees in connection therewith, and in each case regardless of whether the indemnified Person is party thereto. The Borrower shall not be required to indemnify any such indemnified Person from or against any portion of such claims, damages, liabilities or expenses (a) arising out of the gross negligence or willful misconduct of such indemnified Person as determined in a final judgment by a court of competent jurisdiction or (b) that result from the violation by the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank of any law or judicial order.

(d) To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated hereby, any Advance or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve the Borrower of any obligation it may have to indemnify a Person against special, indirect, consequential or punitive damages asserted against such Person by a third party.

 

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SECTION 11.05. Right of Set-Off . Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 9.01 to authorize the Administrative Agent to declare the Advances due and payable pursuant to the provisions of Section 9.01 , each Bank (and each of its Affiliates) is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank (or any of its Affiliates) to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement and any Notes held by such Bank, irrespective of whether or not such Bank shall have made any demand under this Agreement and any Notes and of whether or not such obligations may be matured. Each Bank agrees promptly to notify the Borrower after any such set-off and application made by such Bank, but the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Bank under this Section 11.05 are in addition to other rights and remedies (including, other rights of set-off) which such Bank may have.

SECTION 11.06. Binding Effect; Assignment .

(a) This Agreement shall become effective when it shall have been executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Bank and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Banks.

(b) Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to it hereunder to one or more banks or other entities (excluding natural persons); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrower (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrower); and (iii) any participation shall be

 

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in compliance with Section 11.06(f) . Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

(c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “ Assignment and Acceptance ”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 5.13 , 5.15 and 11.04 for any events or circumstances occurring or existing before the effective date of assignment).

(d) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty

 

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and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 7.01(f) (and any later statements delivered pursuant to Section 8.01(f)(ii) ) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Bank or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Bank.

(e) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount (and stated interest on) of the Advances owing to, each Bank from time to time (the “ Register ”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.

(f) Any Bank may, without the consent of the Borrower, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrower, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a natural Person, a Defaulting Bank or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) participations in all or a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Bank’s participations in Swingline Loans) owing to it); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. For the avoidance of doubt, each Bank shall be responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such

 

72


agreement or instrument may provide that such Bank will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrower and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the Bank from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Bank that sells participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under this Agreement or any Note (the “ Participant Register ”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under this Agreement or any Note) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the Board of Governors of the Federal Reserve System, or any other Governmental Authority, as security for financial accommodations or privileges being provided or extended to such Bank by such Governmental Authority.

SECTION 11.07. Confidentiality . The Administrative Agent, each Bank and each Issuing Bank agree to hold any Information (as defined below) which it may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure (i) to its Affiliates, legal counsel, accountants, and other professional advisors, and then solely on a need-to-know

 

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basis, (ii) in response to any request or order therefor issued by any Governmental Authority, (iii) as required by law, regulation, or judicial process, (iv) within any legal proceeding to enforce any of its rights or remedies hereunder; provided that an Event of Default shall have occurred hereunder and the requisite Banks shall have elected under Section 9.01 to enforce such rights or remedies against the Borrower, (v) to any permitted assignee or participant under Section 11.06 , (vi) to any agents and advisors of a Bank solely in connection with the administration of this Agreement and the Advances and L/C Obligations hereunder, (vii) of Information which has already become publicly available at the time of such disclosure or (viii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and its obligations. In the case of disclosure pursuant to clause (ii) or (iii)  above, the disclosing party agrees, to the extent practicable and permitted by applicable law, regulation or judicial process, to promptly notify the Borrower prior to such disclosure and to request confidential treatment if the Borrower so requests. “ Information ” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Bank on a non-confidential basis prior to disclosure by the Borrower and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry.

EACH BANK ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS SECTION FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH BANK REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

SECTION 11.08. Governing Law . This Agreement and the Notes shall be governed by, and construed in accordance with, the internal laws (as distinguished from the conflicts of laws rules) of the State of New York.

 

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SECTION 11.09. Jurisdiction; Consent to Service of Process .

(a) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, and of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement against the other parties hereto or their respective properties in the courts of any jurisdiction.

(b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in the first sentence of paragraph (a) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11.02 . Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 11.10. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

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SECTION 11.11. Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed signature page of this Agreement by facsimile transmission or in a .PDF or similar file shall be effective as delivery of a manually executed counterpart hereof.

SECTION 11.12. Severability . Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

SECTION 11.13. Entire Agreement . This Agreement, taken together with all of the other documents, instruments and certificates contemplated herein to be delivered by the Borrower, including, the fee letters (if any) executed and delivered prior to the effective date of this Agreement by the Administrative Agent, the Syndication Agents, the Co-Lead Arrangers and the Borrower, embodies the entire agreement and supersedes all prior agreements, written and oral, relating to the subject matter hereof as among the Borrower, the Banks parties hereto and the Administrative Agent.

SECTION 11.14. Existing US Agreement . The Banks that are parties to the Existing US Agreement (which constitute “Majority Banks” thereunder) waive any notice of the termination of the commitments thereunder and such Banks and the Borrower agree that such commitments automatically shall terminate concurrently with the effectiveness hereof pursuant to Section 6.01 .

SECTION 11.15. USA PATRIOT ACT . Each Bank that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Bank to identify the Borrower in accordance with the Act.

SECTION 11.16. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof), the Borrower acknowledges and agrees that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Co-Lead Arrangers and the Banks are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Co-Lead Arrangers and the Banks, on the other hand, (ii) the

 

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Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby; (b) (i) the Administrative Agent, the Co-Lead Arrangers and each Bank is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (ii) neither the Administrative Agent, the Co-Lead Arrangers nor any Bank has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein; and (c) the Administrative Agent, the Co-Lead Arrangers and the Banks and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, the Co-Lead Arrangers, nor any Bank has any obligation to disclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent permitted by law, each of the Banks and the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Co-Lead Arrangers or any Bank with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

SECTION 11.17. Lending Installations . Notwithstanding any other provision of this Agreement, each Bank at its option may make any Advance or issue any Letter of Credit, as applicable, by causing any domestic or foreign office, branch or Affiliate of such Bank (an “ Applicable Lending Installation ”) to make such Advance or Letter of Credit that has been designated by such Bank to the Administrative Agent; provided that a Bank shall not designate an Alternate Lending Installation if the effect of doing so would increase the amount of the Borrower’s obligations pursuant to Section 5.13 or 5.15 relative to what they would be absent such designation. All terms of this Agreement shall apply to any such Applicable Lending Installation of such Bank and the Advances, Letters of Credit and any Notes issued hereunder shall be deemed held by each Bank for the benefit of any such Applicable Lending Installation. Each Bank may, by written notice to the Administrative Agent and the Borrower, designate replacement or additional Applicable Lending Installations through which Advances or Letters of Credit will be made by it and for whose account Advance or Letter of Credit payments are to be made. Any exercise of such option shall not affect the obligation of the Borrower to repay such Advance or Letter of Credit in accordance with the terms of this Agreement.

[Signature Pages Follow]

 

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The duly authorized parties hereto have caused this Agreement to be executed by their respective officers or agents, as of the date of this Agreement.

 

BAXTER INTERNATIONAL INC.
By: /s/ James K. Saccaro
Name: James K. Saccaro
Title:

CORPORATE VICE PRESIDENT AND

CHIEF FINANCIAL OFFICER

 

Address for Notice Purposes:

One Baxter Parkway

Deerfield, Illinois 60015

Attention: Treasurer and Assistant Treasurer

Telephone: (224) 948-3212

Telecopy: (224) 948-2624

Signature Page to

Five-Year Credit Agreement


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
By: /s/ Olivier Lopez
Name: Olivier Lopez
Title: Vice President
Address for Notice Purposes:
10 South Dearborn
Chicago, Illinois 60603
Attention: Olivier Lopez
Telephone: (312) 325-3229
Telecopy: (312) 244-3027

Regarding Borrowings:

Attention: Teresita Siao

Telephone: (312) 385-7051

Telecopy: (888) 292-9533

Signature Page to

Five-Year Credit Agreement


Bank of America, N.A.
By: /s/ Joseph L. Corah
Name: Joseph L. Corah
Title: Director

Signature Page to

Five-Year Credit Agreement


CITIBANK, N.A.
By: /s/ Marni McManus
Name: Marni McManus
Title: Vice President

Signature Page to

Five-Year Credit Agreement


MIZUHO BANK, LTD.
By: /s/ Bertram H. Tang
Name: Bertram H. Tang
Title: Authorized Signatory

Signature Page to

Five-Year Credit Agreement


DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Ming K. Chu
Name: Ming K. Chu
Title: Vice President
By: /s/ Virginia Cosenza
Name: Virginia Cosenza
Title: Vice President

Signature Page to

Five-Year Credit Agreement


GOLDMAN SACHS BANK USA
By: /s/ Rebecca Kratz
Name: Rebecca Kratz
Title: Authorized Signatory

Signature Page to

Five-Year Credit Agreement


UBS AG, Stamford Branch,

as a Lender

By: /s/ Craig Pearson
Name: Craig Pearson
Title:

Associate Director

Banking Product Services, US

By: /s/ Houssem Daly
Name: Houssem Daly
Title:

Associate Director

Banking Product Services, US

Signature Page to

Five-Year Credit Agreement


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
By: /s/ Christopher Day
Name: Christopher Day
Title: Authorized Signatory
By: /s/ Karim Rahimtoola
Name: Karim Rahimtoola
Title: Authorized Signatory

Signature Page to

Five-Year Credit Agreement


BARCLAYS BANK PLC
By: /s/ Kayode Sulola
Name: Kayode Sulola
Title: Assistant Vice President
Executed in London, United Kingdom

Signature Page to

Five-Year Credit Agreement


HSBC Bank USA, N.A.
By: /s/ Andrew Bicker
Name: Andrew Bicker
Title: Senior Vice President

Signature Page to

Five-Year Credit Agreement


THE BANK OF TOKYO MITSUBISHI UFJ, LTD.
By: /s/ Jaime Johnson
Name: Jaime Johnson
Title: Vice President

Signature Page to

Five-Year Credit Agreement

 


Toronto Dominion (Texas) LLC
By: /s/ Savo Bozic
Name: Savo Bozic
Title: Authorized Signatory

Signature Page to

Five-Year Credit Agreement


Bank of China, Chicago Branch
By: /s/ Xu Kefei
Name: Xu Kefei
Title: SVP & Branch Manager

Signature Page to

Five-Year Credit Agreement


THE BANK OF NEW YORK MELLON
By: /s/ Clifford A. Mull
Name: Clifford A. Mull
Title: First Vice President

Signature Page to

Five-Year Credit Agreement


Exhibit 2.02

FORM OF

NOTICE OF BORROWING

JPMorgan Chase Bank, National Association,

as Administrative Agent for the

Banks that are parties to the Credit

Agreement referred to below

10 S. Dearborn Street, Floor L2

Chicago, Illinois 60603

Attention: Teresita Siao

Dear Ms. Siao:

The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as of July 1, 2015 (the “ Credit Agreement ,” the terms defined therein being used herein as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase Bank, National Association, as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.02 of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is                      , 20      .

(ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].

(iii) The aggregate amount of the Proposed Borrowing is $              .

(iv) The Interest Period for each [Eurodollar Rate Advance] made as part of the Proposed Borrowing is [      months].

(v) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A duly completed Form FR U-l (OMB No. 7100-0115), executed by a duly authorized officer of the undersigned, accompanies this Notice of Borrowing and sets forth thereon the relevant information with respect to the use of the proceeds of the Proposed Borrowing].


Very truly yours,

 

BAXTER INTERNATIONAL INC.

By:  
Title:  


Exhibit 2.03

FORM OF

NOTICE OF INTEREST RATE ELECTION

JPMorgan Chase Bank, National Association,

as Administrative Agent for the

Banks that are parties to the Credit

Agreement referred to below

10 S. Dearborn Street, Floor L2

Chicago, Illinois 60603

Attention: Teresita Siao

Dear Ms. Siao:

The undersigned, Baxter International Inc., refers to the Five-Year Credit Agreement, dated as of July 1, 2015 (the “ Credit Agreement ,” the terms defined therein being used herein as therein defined), among Baxter International Inc., the Banks parties thereto and JPMorgan Chase Bank, National Association, as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement of an interest rate election, and in that connection sets forth below the information relating to the affected Borrowing (the “ Affected Borrowing ”) as required by Section 2.03 of the Credit Agreement:

 

  (i) The Affected Borrowing is the following:

 

  (a) Type:                                                              

 

  (b) Last Day of Present Interest Period:                                                      

 

  (c) Aggregate Amount: $              .

 

  (ii) The portion of such Affected Borrowing to be [Converted/continued] is: $             

 

  (iii) Business Day of the [Conversion/conversion] in respect of the Affected Borrowing is                      , 20      .

 

  (iv) Upon giving effect to the [Conversion/continuation], the Affected Borrowing shall be comprised of the following:

 

  [(a) $              of [Base Rate Advances] ;


  (b) $              of Eurodollar Rate Advances having an Interest Period of          month[s]; and

 

  (c) $              of Eurodollar Rate Advances having an Interest Period of          month[s].

 

Very truly yours,

 

BAXTER INTERNATIONAL INC.

By:  
Title:  


Exhibit 11.06

FORM OF

ASSIGNMENT AND ACCEPTANCE

This Assignment and Acceptance (the “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.

 

1.        

Assignor:                                                                                                                                                                                 

2.        

Assignee:

                                                                                                                                                                                

[and is an Affiliate/Approved Fund of [identify Bank]]

3.        

Borrower: Baxter International Inc.

4.        

Administrative Agent: JPMorgan Chase Bank, National Association, as the administrative agent under the Credit Agreement

5.        

Credit Agreement: Five-Year Credit Agreement, dated as of July 1, 2015, among Baxter International Inc., the Banks party thereto and JPMorgan Chase Bank, National Association, as Administrative Agent (the “ Credit Agreement ”)


6. Assigned Interest:

 

Aggregate
Amount of
Commitment/Advances
for all Banks

   Amount of
Commitment/Advances
Assigned
     Percentage
of
Commitment/Advances
Assigned 1
 
$    $           %   
$    $           %   
$    $           %   

Effective Date:                   , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

The terms set forth in this Assignment and Acceptance are hereby agreed to:

 

ASSIGNOR

[NAME OF ASSIGNOR]

By:    
Title:  

ASSIGNEE

[NAME OF ASSIGNEE]

By:    
Title:  

 

1   Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.


[Consented to and Accepted:] 2

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Administrative Agent

 

By    
Title:  

[Consented to:] 3

BAXTER INTERNATIONAL INC., as Borrower

 

By    
Title:  

[Consented to:]

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Issuing Bank

 

By    
Title:  

 

2   To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement
3   To be added only if the consent of the Borrower and/or other parties (e.g., Swingline Banks, Issuing Banks) is required by the terms of the Credit Agreement


ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE

1. Representations and Warranties .

1.1 Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other document or instrument delivered in connection therewith, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other document or instrument delivered in connection therewith or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the Credit Agreement or any other document or instrument delivered in connection therewith or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Credit Agreement or any other document or instrument delivered in connection therewith.

1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 7.01(f) thereof and any later financial statements delivered pursuant to Section 8.01(f)(ii) thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank, and (v) if it is a non-U.S. Bank, attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank.

2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.


3. General Provisions . This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.


EXHIBIT C-1

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Banks That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter International Inc. and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the loan(s) (as well as any Note(s) evidencing such loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF BANK]
By:  
Name:
Title:

Date:                       , 20[    ]


EXHIBIT C-2

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter International Inc. and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing, and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  
Name:
Title:

Date:                       , 20[    ]


EXHIBIT C-3

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter International Inc. and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  
Name:
Title:

Date:                       , 20[    ]


EXHIBIT C-4

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Banks That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter International Inc. and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the loan(s) (as well as any Note(s) evidencing such loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such loan(s) (as well as any Note(s) evidencing such loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other loan document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF BANK]
By:  
Name:
Title:

Date:                       , 20[    ]


Schedule 1.01

COMMITMENTS

 

Bank

   Amount of
Commitment
 

Breakdown on record with the Borrower.

  

Total

   $ 1,500,000,000   

L/C COMMITMENTS

 

Bank

   Amount of
Commitment
 

Breakdown on record with the Borrower.

  

Total

   $ 250,000,000   


Schedule 1.02

Existing Letters of Credit

 

Booking Party Name

   Reference Number      Release Date      Expiry Date  

Baxter International Inc.

     CPCS-958685         9/21/2011         6/30/2016   

Baxter International Inc.

     CPCS-633302         5/10/2004         3/22/2016   

Baxter International Inc.

     CPCS-633293         5/10/2004         7/31/2016   

Baxter International Inc.

     CPCS-630567         1/23/2004         7/1/2016   

Baxter International Inc.

     CPCS-399222         9/25/2007         10/1/2015   

Baxter International Inc.

     CPCS-317673         1/15/2013         11/1/2015   


Schedule 5

PRICING MATRIX

The Applicable Eurodollar Margin, the Applicable Base Rate Margin, the Facility Fee Rate and the Letter of Credit Fee Rate, respectively, shall be determined in accordance with the table below (in basis points per annum) and the other provisions of this Schedule 5 on the basis of the publicly announced ratings (“ Credit Ratings ”) by Moody’s, S&P and Fitch on the Borrower’s senior unsecured Debentures, the applicable rate to change when and as such Credit Ratings change.

 

     Level I      Level II      Level III      Level IV      Level V      Level
VI
 

Reference Rating (Moody’s/S&P/Fitch)

    

 

³  A2 / A

/ A

 

  

    
 
³  A3 / A-
/ A-
  
  
    
 
 
³  Baa1 /
BBB+ /
BBB+
  
  
  
    
 
 
³  Baa2 /
BBB /
BBB
  
  
  
    
 

 

³  Baa3 /
BBB- /

BBB-

  
  

  

    
 
 
< Baa3-
/ BBB- /
BBB-
  
  
  

Facility Fee Rate

     7.5         10.0         12.5         15.0         17.5         25.0   

Applicable Eurodollar Margin

     80.0         90.0         100.0         110.0         120.0         150.0   

Applicable Base Rate Margin

     0.0         0.0         0.0         10.0         20.0         50.0   

Letter of Credit Fee Rate

     80.0         90.0         100.0         110.0         120.0         150.0   

For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:

Fitch Rating ” means, at any time, the rating issued by Fitch Ratings Inc. or any successor, and then in effect with respect to the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.

Level I Status ” exists at any date if, on such date, the Borrower has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of A2, (ii) S&P Rating of A and (iii) Fitch Rating of A.

Level II Status ” exists at any date if, on such date, (a) the Borrower has not qualified for Level I Status and (b) the Borrower has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of A3, (ii) S&P Rating of A- and (iii) Fitch Rating of A-.

Level III Status ” exists at any date if, on such date, (a) the Borrower has not qualified for Level I Status or Level II Status and (b) the Borrower has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa1, (ii) S&P Rating of BBB+ and (iii) Fitch Rating of BBB+.


Level IV Status ” exists at any date if, on such date, (a) the Borrower has not qualified for Level I Status, Level II Status or Level III Status and (b) the Borrower has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa2, (ii) S&P Rating of BBB and (iii) Fitch Rating of BBB.

Level V Status ” exists at any date if, on such date, (a) the Borrower has not qualified for Level I Status, Level II Status, Level III Status or Level IV Status and (b) the Borrower has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa3, (ii) S&P Rating of BBB- and (iii) Fitch Rating of BBB-.

Level VI Status ” exists at any date if, on such date, the Borrower has not qualified for Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.

Moody’s Rating ” means, at any time, the rating issued by Moody’s Investors Service, Inc. or any successor, and then in effect with respect to the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.

Rating ” means Moody’s Rating, S&P Rating or Fitch Rating.

S&P Rating ” means, at any time, the rating issued by Standard and Poor’s Financial Services, LLC, or any successor, and then in effect with respect to the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.

Status ” means Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status or Level VI Status.

The Facility Fee Rate, Applicable Base Rate Margin, Applicable Eurodollar Margin and Letter of Credit Fee Rate shall be determined in accordance with the foregoing table based on the Borrower’s Status as determined from its then-current Ratings; provided that if at any time there is a split in the Ratings issued by Moody’s, S&P and Fitch, then notwithstanding the foregoing, Status shall be based upon the two Ratings upon which the highest Status applies (with Level I Status being the highest and Level VI Status being the lowest), unless (1) the lowest Rating is more than one tier lower than the other two Ratings, in which case Status shall be one level lower than the otherwise applicable Status and (2) the Ratings issued by Moody’s, S&P and Fitch are all in different tiers, in which case Status shall be determined by the second highest of the three Ratings. The credit rating in effect on any date for the purposes of this Schedule is that in effect at the close of business on such date. Subject to the following sentence, until January 4, 2016, Status shall be deemed to be the lower of Level III Status and the Status otherwise applicable pursuant to the above. If the Borrower does not have at least two of the three Ratings, Level VI Status shall apply.

Exhibit 10.5

Execution Version

€200,000,000

 

 

CREDIT AGREEMENT

 

 

Dated as of July 1, 2015

among

BAXTER HEALTHCARE SA

and

BAXTER WORLD TRADE SPRL

as Borrowers

THE FINANCIAL INSTITUTIONS NAMED HEREIN

as Banks

J.P. MORGAN EUROPE LIMITED

as Administrative Agent

CITIBANK N.A., LONDON BRANCH

and

DEUTSCHE BANK SECURITIES INC.

as Syndication Agents

and

J.P. MORGAN SECURITIES LLC,

CITIGROUP GLOBAL MARKETS LIMITED

and

DEUTSCHE BANK SECURITIES INC.

Mandated Lead Arrangers and Joint Book Runners


TABLE OF CONTENTS

 

    Page  

ARTICLE I DEFINITIONS

    1   

SECTION 1.01. Defined Terms.

    1   

SECTION 1.02. Accounting Terms and Principles.

    14   

SECTION 1.03. Other Interpretive Provisions.

    15   

ARTICLE II THE BORROWING FACILITY

    15   

SECTION 2.01. The Borrowing Facility.

    15   

SECTION 2.02. Making the Advances.

    16   

SECTION 2.03. Method of Electing Interest Periods.

    16   

SECTION 2.04. Determination of Euro Amount; Required Payments; Termination.

    17   

SECTION 2.05. Increase in Aggregate Commitment.

    18   

ARTICLE III SWINGLINE LOANS

    19   

SECTION 3.01. Swingline Loans.

    19   

SECTION 3.02. Swingline Loan Participations.

    19   

ARTICLE IV THE LETTER OF CREDIT FACILITY

    20   

SECTION 4.01. Obligation to Issue.

    20   

SECTION 4.02. Types and Amounts.

    20   

SECTION 4.03. Conditions.

    21   

SECTION 4.04. Procedure for Issuance of Letters of Credit.

    22   

SECTION 4.05. Letter of Credit Participation.

    22   

SECTION 4.06. Reimbursement Obligation.

    23   

SECTION 4.07. Issuing Bank Charges.

    23   

SECTION 4.08. Issuing Bank Reporting Requirements.

    24   

SECTION 4.09. Indemnification; Exoneration.

    24   

ARTICLE V GENERAL TERMS

    25   

SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair.

    25   

SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings.

    27   

SECTION 5.03. Effect of Failure to Borrow or Fund.

    27   

SECTION 5.04. Fees and Certain Credit Rating Determinations.

    28   

SECTION 5.05. Reduction of the Commitments.

    28   

SECTION 5.06. Repayment.

    29   

SECTION 5.07. Interest.

    29   

SECTION 5.08. Additional Interest on Advances.

    29   

SECTION 5.09. Interest on Overdue Principal.

    30   

SECTION 5.10. Interest Rate Determinations.

    30   

SECTION 5.11. Performance of Banks’ Obligations.

    30   

SECTION 5.12. Optional Prepayments.

    30   

SECTION 5.13. Increased Costs.

    31   

SECTION 5.14. Payments and Computations.

    32   

SECTION 5.15. Taxes.

    34   

 

i


SECTION 5.16. Noteless Agreement; Evidence of Indebtedness.

  38   

SECTION 5.17. Sharing of Payments, Etc.

  38   

SECTION 5.18. Termination and Prepayment with Respect to Any Bank.

  39   

SECTION 5.19. Defaulting Banks.

  41   

SECTION 5.20. Additional Borrowers.

  44   

SECTION 5.21. Resignation of a Borrower.

  44   

ARTICLE VI CONDITIONS PRECEDENT

  44   

SECTION 6.01. Conditions Precedent to Effectiveness of Agreement.

  44   

SECTION 6.02. Conditions Precedent to Each Credit Extension.

  46   

ARTICLE VII REPRESENTATIONS AND WARRANTIES

  46   

SECTION 7.01. Representations and Warranties of the Borrowers.

  46   

SECTION 7.02. Representations and Warranties of the Banks.

  47   

ARTICLE VIII COVENANTS

  48   

SECTION 8.01. Affirmative Covenants of the Borrowers.

  48   

SECTION 8.02. Negative Covenants of the Borrowers.

  49   

ARTICLE IX EVENTS OF DEFAULT

  49   

SECTION 9.01. Events of Default.

  49   

SECTION 9.02. Cash Collateral.

  52   

ARTICLE X THE ADMINISTRATIVE AGENT

  52   

SECTION 10.01. Authorization and Action.

  52   

SECTION 10.02. Duties and Obligations.

  52   

SECTION 10.03. Administrative Agent and Affiliates.

  53   

SECTION 10.04. Bank Credit Decision.

  53   

SECTION 10.05. Indemnification.

  53   

SECTION 10.06. Sub-Agents.

  54   

SECTION 10.07. Successor Administrative Agent.

  54   

SECTION 10.08. Syndication Agents and Mandated Lead Arrangers.

  55   

ARTICLE XI MISCELLANEOUS

  55   

SECTION 11.01. Amendments, Etc.

  55   

SECTION 11.02. Notices, Etc.

  56   

SECTION 11.03. No Waiver; Cumulative Remedies.

  57   

SECTION 11.04. Costs and Expenses; Indemnification.

  57   

SECTION 11.05. Right of Set-Off.

  59   

SECTION 11.06. Binding Effect; Assignment.

  59   

SECTION 11.07. Confidentiality.

  63   

SECTION 11.08. Governing Law.

  64   

SECTION 11.09. Jurisdiction; Consent to Service of Process.

  64   

SECTION 11.10. WAIVER OF JURY TRIAL.

  64   

SECTION 11.11. Execution in Counterparts.

  65   

SECTION 11.12. Severability.

  65   

SECTION 11.13. Entire Agreement.

  65   

 

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SECTION 11.14. Market Disruption.

  65   

SECTION 11.15. Existing Euro Facility.

  65   

SECTION 11.16. Judgment Currency.

  65   

SECTION 11.17. USA PATRIOT ACT.

  66   

SECTION 11.18. No Advisory or Fiduciary Responsibility.

  66   

SECTION 11.19. Lending Installations.

  67   

 

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EXHIBIT AND SCHEDULES

 

Exhibit 2.02 Form of Notice of Borrowing
Exhibit 2.03 Form of Notice of Interest Period Election
Exhibit 4.01 Form of Guaranty
Exhibit 5.20 Form of Designation Letter
Exhibit 11.06 Form of Assignment and Acceptance
Exhibit C-1 Form of U.S. Tax Compliance Certificate
Exhibit C-2 Form of U.S. Tax Compliance Certificate
Exhibit C-3 Form of U.S. Tax Compliance Certificate
Exhibit C-4 Form of U.S. Tax Compliance Certificate
Schedule 1.01 Commitments
Schedule 1.02 Lending Office Addresses
Schedule 1.03 Existing Letters of Credit
Schedule 5 Pricing Matrix

 

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CREDIT AGREEMENT

Dated as of July 1, 2015

Baxter Healthcare SA, a corporation duly organized and existing under the laws of Switzerland (“ Baxter Healthcare SA ”), Baxter World Trade SPRL, a corporation duly organized and existing under the laws of Belgium (“ Baxter World Trade SPRL ”), the financial institutions listed on the signature pages of this Agreement under the heading “Banks” (such financial institutions and any successor financial institution that becomes a party to this Agreement pursuant to Section 2.05, 5.18 or 11.06 hereinafter individually being referred to as a “Bank” and collectively referred to as the “ Banks ”), and J.P. Morgan Europe Limited, as administrative agent hereunder (such administrative agent and any successor administrative agent appointed pursuant to Section 10.07 , “ Administrative Agent ”), agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Defined Terms . As used in this Credit Agreement (this “ Agreement ”), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Act ” has the meaning assigned to that term in Section 11.17 .

Additional Borrower ” means a Wholly-Owned Subsidiary of the Guarantor which becomes a “Borrower” hereunder pursuant to Section 5.20 .

Administrative Agent ” has the meaning assigned in the preamble to this Agreement.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Advance ” means (a) an advance by a Bank to the Applicable Borrower pursuant to Section 2.01 , as the same may be continued from time to time pursuant to Section 2.03 , (b) an advance by a Swingline Bank to the Applicable Borrower pursuant to Section 3.01 or (c) an automatic advance by a Bank to the Applicable Borrower pursuant to Section 4.06 .

Affiliate ” means, as to any Person at any time, any other Person that, at such time, directly or indirectly, controls, is controlled by or is under common control with such Person.

Aggregate Commitments ” means, at any time, the aggregate amount of the Commitments of all the Banks hereunder at such time.

Aggregate Revolving Credit Exposure ” means, at any time, the aggregate amount of the Revolving Credit Exposure of all Banks hereunder at such time.


Agreed Currencies ” means (a) Euro, (b) so long as such currency remains an Eligible Currency, Swiss Francs, and (c) any other Eligible Currency which the Applicable Borrower requests the Administrative Agent to include as an Agreed Currency hereunder and which is acceptable to all of the Banks. For the purposes of this definition, the specific currency referred to in clause (b), above, shall mean and be deemed to refer to the lawful currency of the jurisdiction referred to in connection with such currency, i.e., “Swiss Francs” means the lawful currency of Switzerland.

Applicable Accounting Principles ” means, with respect to any Borrower, generally accepted accounting principles as in effect from time to time in the jurisdiction of such Borrower’s organization (or, to the extent used by such Borrower in lieu of such accounting principles, GAAP or International Financial Reporting Standards).

Applicable Borrower ” means, relative to any Advance or Letter of Credit, the Borrower to which such credit has been or is anticipated to be extended.

Applicable Margin ” means, at any time with respect to each Advance, a rate per annum determined in accordance with Schedule 5.

Applicable Percentage ” means, with respect to a Bank, such Bank’s pro rata share of the Aggregate Commitments (or, after the Commitments have been terminated, the aggregate unpaid principal amount of Advances and L/C Obligations then outstanding under the Agreement).

Approved Fund ” means any Fund that is administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.

Assignment and Acceptance ” has the meaning assigned to that term in Section 11.06(c) .

Bank ” and “ Banks ” are defined in the first paragraph hereof. Unless the context otherwise requires, the term “Banks” includes the Swingline Banks and the Issuing Banks.

Bank Termination Date ” has the meaning assigned to that term in Section 5.18(b) .

Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided , further , that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

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Borrower ” means each of Baxter Healthcare SA, Baxter World Trade SPRL and each Additional Borrower, both individually and (as the context requires) collectively; and “Borrowers” means all of the foregoing collectively.

Borrowing ” means (a) a borrowing consisting of Advances in the same currency and as to which a single Interest Period is in effect, made on the same day by the Banks, as the same may be continued from time to time pursuant to Section 2.03 and after giving effect to any subsequent Conversion or continuation in connection with which a single Borrowing may have been divided into several Borrowings or several Borrowings may have been combined (in whole or in part) into a single Borrowing, (b) a Swingline Loan or (c) a borrowing of Advances pursuant to Section 4.06 made on the same day by the Banks.

Borrowing Date ” means a date on which an Advance is, or is proposed to be, made hereunder, or a Letter of Credit is, or is proposed to be, issued hereunder.

Business Day ” means a day (other than Saturday or Sunday) of the year on which banks are not required or authorized to close in London and in New York City and are generally open for the conduct of substantially all of their commercial lending activities; provided that when used in connection with an Advance, the term “ Business Day ” shall also be a day on which dealings are carried on in the London interbank market.

Change in Law ” has the meaning assigned it in Section 5.13(a) .

Change of Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof) of fifty percent (50%) or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Guarantor; (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof), other than the Guarantor or any of its Wholly-Owned Subsidiaries, of fifty percent (50%) or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of a Borrower; or (c) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Guarantor or a Borrower by Persons who were neither (i) nominated by the board of directors of the Guarantor or a Borrower, as applicable, nor (ii) appointed by directors so nominated.

Closing Date ” means July 1, 2015.

Code ” means the Internal Revenue Code of 1986.

Commitment ” means, with respect to each Bank, the commitment of such Bank to make Advances and to acquire participations in Swingline Loans and Letters of Credit hereunder, the maximum extent of such commitment being expressed as the amount indicated opposite such Bank’s name on Schedule 1.01 hereto, as such amount may from time to time have been increased pursuant to Section 2.05, reduced pursuant to Section 5.05 or modified in accordance with Section 11.06 .

 

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Computation Date ” has the meaning assigned to that term in Section 2.04 .

Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated ” refers to the full consolidation of the accounts of the Guarantor and its Subsidiaries in accordance with GAAP, including principles of consolidation, consistent with those applied in the preparation of the financial statements referred to in Section 11(f) of the Guaranty.

Consolidated Subsidiary ” means any Subsidiary of the Guarantor the accounts of which are Consolidated.

Credit Extension ” means a borrowing of Advances or the issuance of a Letter of Credit hereunder.

Credit Ratings ” has the meaning assigned to that term in Schedule 5.

Debentures ” means long-term debt securities (without third-party credit enhancement).

Debt ” means the sum of: (a) indebtedness for borrowed money or for the deferred purchase price of property or services carried as indebtedness on the Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries (excluding accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (b) obligations of the Guarantor and its Consolidated Subsidiaries as lessee under leases that, in accordance with GAAP, are recorded as capital leases, and (c) obligations of the Guarantor and its Consolidated Subsidiaries under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of other parties of the kinds referred to in clauses (a) and (b) above (other than Debt of any Subsidiary, to the extent such Debt is included in the calculation of Debt as a result of clause (a) or (b) above) in excess of $100,000,000 in the aggregate for all such obligations described in this clause (c). The term “Debt” shall not include the undrawn face amount of any letter of credit issued for the account of the Guarantor or any of its Consolidated Subsidiaries, but shall include the reimbursement obligation owing from time to time by the Guarantor or any of its Consolidated Subsidiaries in respect of drawings made under any letter of credit in the event reimbursement is not made immediately following the applicable drawing .

Defaulting Bank ” means (a) any Bank that (i) has failed, within two (2) Business Days of the date required to be funded or paid, to (1) fund any portion of its Commitment, (2) fund any portion of its participations in Letters of Credit or Swingline Loans or (3) pay over to any Recipient any other amount required to be paid by it hereunder, unless, in the case of clause (1)  above, such Bank notifies the Administrative Agent in writing that such failure is the

 

4


result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) has notified the Borrowers or any Recipient in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding an advance under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (iii) has failed, within three (3) Business Days after request by a Recipient, acting in good faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Advances and participations in then outstanding Letters of Credit, Swingline Loans and Advances under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (ii) upon such Recipient’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (iii) has become the subject of a Bankruptcy Event; or (b) a Bank whose Parent shall become the subject of a Bankruptcy Event.

Designation Letter ” means a designation letter substantially in the form of Exhibit 5.20 .

Dollars ” and “ $ ” means the lawful currency of the United States of America.

Eligible Currency ” means any currency other than Euro (a) that is readily available, (b) that is freely traded, (c) in which deposits are customarily offered to banks in the London interbank market, (d) which is convertible into Euro in the international interbank market and (e) as to which a Euro Amount may be readily calculated. If, after the designation by the Banks of any currency as an Agreed Currency, (x) currency control or other exchange regulations are imposed in the country in which such currency is issued with the result that different types of such currency are introduced, (y) such currency is, in the determination of the Administrative Agent, no longer readily available or freely traded or (z) in the determination of the Administrative Agent, a Euro Amount of such currency is not readily calculable, the Administrative Agent shall promptly notify the Banks and the Borrowers, and such currency shall no longer be an Agreed Currency until such time as all of the Banks agree to reinstate such currency as an Agreed Currency and promptly, but in any event within five Business Days of receipt of such notice from the Administrative Agent, the Applicable Borrower shall repay all Advances in such affected currency.

Environmental Laws ” means federal, state, local and foreign laws, rules and regulations relating to the release, emission, disposal, storage and related handling of waste materials, pollutants and hazardous substances.

Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in a Person, and any and all warrants, rights or options to purchase any of the foregoing.

ERISA ” means the Employee Retirement Income Security Act of 1974. References to sections of ERISA also refer to any successor sections.

 

5


Euro ”, “ ” and/or “ EUR ” means the euro referred to in Council Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if different, the then lawful currency of the member states of the European Union that participate in the third stage of the Economic and Monetary Union.

Euro Amount ” of any currency at any date means (a) the amount of such currency if such currency is Euro or (b) the equivalent in Euro of the amount of such currency if such currency is any currency other than Euro, calculated on the basis of the rate at which such currency may be exchanged into Euro at the time of determination on such day on the Reuters Currency pages, if available, for such currency. In the event that such rate does not appear on any Reuters Currency pages, the exchange rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrowers, or, in the absence of such an agreement, such exchange rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about such time as the Administrative Agent shall elect after determining that such rates shall be the basis for determining the exchange rate, on such date for the purchase of Euro for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be prima facie evidence thereof.

Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurocurrency Rate ” means, the London interbank offered rate as administered by ICE Benchmark Administration (“ ICE ”) (or any other Person that takes over the administration of such rate) for the applicable Agreed Currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or, in the event such rate does not appear on such Reuters pages, on any successor or substitute Reuters page that displays such rate, or on the appropriate pages of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); in each case, the “ Eurocurrency Screen Rate ”) at approximately 11:00 a.m. London time two Business Days prior to the first day of such Interest Period; provided that if the Eurocurrency Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided further that if the Eurocurrency Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) then the Eurocurrency Rate shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Eurocurrency Rate Reserve Percentage ” of any Bank for the Interest Period for any Advance in any Agreed Currency means the maximum reserve percentage applicable during such Interest Period (or, if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System for determining the reserve requirement (including any emergency, supplemental or other marginal reserve requirement and taking into account any

 

6


transitional adjustments or other scheduled changes in reserve requirements during such Interest Period) for such Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.

Eurocurrency Screen Rate ” has the meaning assigned to it in the definition of “Eurocurrency Rate.”

Events of Default ” has the meaning assigned to that term in Section 9.01 .

Exchange Act ” means the Securities Exchange Act of 1934.

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Bank, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Bank, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Bank acquires such interest in the Advance or Commitment (other than an assignment made pursuant to Section 5.18) or (ii) such Bank changes its lending office, except in each case to the extent that, pursuant to Section 5.15 , amounts with respect to such Taxes were payable either to such Bank’s assignor immediately before such Bank became a party hereto or to such Bank immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.15(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Existing Euro Facility ” means Baxter Healthcare SA’s revolving credit agreement dated as of January 7, 2008.

Existing Letters of Credit ” means the Letters of Credit identified on Schedule 1.03 hereto.

Existing US Facility ’ means the Guarantor’s four-year revolving credit agreement dated as of June 17, 2011.

Facility Fee ” is defined in Section 5.04(a) .

Facility Fee Rate ” means a rate per annum determined in accordance with Schedule 5.

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Fitch ” means Fitch, Inc., or its successor.

 

7


Foreign Bank ” means, relative to credit extended to a Borrower, (a) if the Applicable Borrower is a U.S. Person, a Bank that is not a U.S. Person, and (b) if the Applicable Borrower is not a U.S. Person, a Bank that is resident or organized under the laws of a jurisdiction other than that in which the Applicable Borrower is resident for tax purposes.

Form 10 ” means the Registration Statement on Form 10 filed with the SEC by Baxalta Incorporated on December 10, 2014, as amended from time to time, to effect the Spin Off, as declared effective on June 9, 2015.

Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP ” means generally accepted accounting principles as in effect from time to time in the United States.

Governmental Acts ” is defined in Section 4.09(a) .

Governmental Authority ” means any nation or government, any federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Guarantor ” means Baxter International Inc., a Delaware corporation.

Impacted Interest Period ” has the meaning assigned to such term in the definition of “Eurocurrency Rate”.

Guaranty ” means the Guaranty, dated as of the Closing Date, executed by the Guarantor, substantially in the form of Exhibit 4.01 hereto.

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Interest Period ” means, for each Advance comprising part of the same Borrowing, the period commencing on the date of such Advance (or on the effective date of continuation or Conversion thereof pursuant to Section 2.03 ) and ending on the last day of the period selected by the Applicable Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one (1), two (2), three (3) or six (6) months; provided that:

(a) The duration of any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date;

(b) Interest Periods commencing on the same day for Advances comprising the same Borrowing shall be of the same duration;

(c) Whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period

 

8


shall be extended to occur on the next succeeding Business Day, unless such extension would cause the last day of such Interest Period to occur in the next following calendar month, in which case the last day of such Interest Period shall occur on the immediately preceding Business Day; and

(d) If an Interest Period begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), such Interest Period shall end on the last Business Day of a calendar month.

Interpolated Rate ” means, at any time for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBOR Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate (for the longest period for which the LIBOR Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which such Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time.

IRS ” means the United States Internal Revenue Service.

Issuing Banks ” means each of JPMorgan Chase Bank, N.A., London Branch, Deutsche Bank AG, London Branch, Citibank, N.A., London Branch and any other Bank that, at a Borrower’s request, agrees, in such other Bank’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit under this Agreement, and their respective successors and assigns.

J.P. Morgan Europe ” means J.P. Morgan Europe Limited, in its individual capacity, and its successors.

L/C Application ” means a letter of credit application and reimbursement agreement in such form as the applicable Issuing Bank may from time to time employ in the ordinary course of business.

L/C Commitment ” means, with respect to any Issuing Bank at any time, the amount indicated opposite such Bank’s name on Schedule 1.01 hereto or such other amount as may be agreed between such Issuing Bank and the Borrowers, and specified to the Administrative Agent, from time to time.

L/C Draft ” means a draft drawn on an Issuing Bank pursuant to a Letter of Credit.

L/C Exposure ” means, at any time, the sum of the L/C Obligations at such time. The L/C Exposure of any Bank at any time shall be its Applicable Percentage of the total L/C Exposure at such time.

L/C Interest ” has the meaning assigned to such term in Section 4.05 .

 

9


L/C Obligations ” means, without duplication, an amount equal to the sum of (i) the aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate outstanding amount of all Reimbursement Obligations at such time and (iv) the aggregate face amount of all Letters of Credit requested by the Borrowers but not yet issued (unless the request for an unissued Letter of Credit has been denied). The L/C Obligations of any Bank at any time shall be such Bank’s Applicable Percentage multiplied by the aggregate L/C Obligations at such time.

Lending Office ” means, with respect to each Bank, the office of such Bank specified as its “Lending Office” opposite its name on Schedule 1.02 hereto or such other office of such Bank as such Bank may from time to time specify to the Borrowers and the Administrative Agent.

Letter of Credit ” means any letter of credit issued by an Issuing Bank pursuant to Section 4.01 .

Letter of Credit Fee ” is defined in Section 5.04(b) .

Letter of Credit Fee Rate ” means a rate per annum determined in accordance with Schedule 5 .

Loan Documents ” means, collectively, this Agreement, the Notes, the Guaranty and any other agreement, instrument or document executed in connection therewith that the Borrowers and the Administrative Agent agree in writing is a Loan Document.

Loan Parties ” means the Borrowers and the Guarantor.

Majority Banks ” means at any time Banks having more than fifty percent (50%) of the then aggregate amount of the Commitments or, if the Commitments have been terminated, holding more than fifty percent (50%) of the Euro Amount of Aggregate Revolving Credit Exposure then outstanding under this Agreement. The Commitments, Advances, Swingline Loans and L/C Obligations of any Defaulting Bank shall be disregarded in determining the Majority Banks at any time.

Margin Regulations ” has the meaning assigned to that term in Section 8.01(h).

Mandated Lead Arrangers ” means J.P. Morgan Limited, Citigroup Global Markets Limited and Deutsche Bank Securities Inc. in their capacities as Mandated Lead Arrangers.

Margin Stock ” has the meaning assigned to that term under Regulation U issued by the Board of Governors of the Federal Reserve System.

Material Subsidiary ” means any Borrower and any other subsidiary of the Guarantor that would be a significant subsidiary of the Guarantor within the meaning of Rule 1-02(w)(2) under Regulation S-X promulgated by the Securities and Exchange Commission; provided that the reference to “10 percent of the total assets of the registrant and its subsidiaries”

 

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therein shall be deemed for the purposes of this definition to read as “20 percent of the total assets of the registrant and its subsidiaries”. As of the Closing Date, the Material Subsidiaries are Baxter Healthcare Corporation and Baxter World Trade Corporation.

Moody’s ” means Moody’s Investors Service, Inc., or its successor.

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Guarantor or any Material Subsidiary makes or is obligated to make contributions.

Non-Consenting Bank ” means any Bank that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Banks in accordance with the terms of Section 11.01 and (ii) has been approved by the Majority Banks.

Note ” has the meaning assigned to that term in Section 5.16(d) .

Notice of Borrowing ” has the meaning assigned to that term in Section 2.02 .

Notice of Interest Period Election ” has the meaning assigned to that term in Section 2.03 .

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance or any Loan Document).

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.18 ).

Overnight LIBO ” means, when used in reference to any Advances or Borrowing, whether such Advances or the Advances comprising such Borrowing accrues interest at a rate determined by reference to the Overnight LIBO Rate.

Overnight LIBO Rate ” means, for any date, (a) the overnight London interbank offered rate as administered by ICE (or any other Person that takes over the administration of such rate) for deposits in Euros as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on such Reuters pages, on any successor or substitute Reuters page that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) at approximately 11 a.m. London time on such date (or, if such date is not a Business Day, on the most recent Business Day preceding such date) plus (b) the Applicable Margin. In the event that such overnight London interbank offered rate determined as provided in clause (a) above is less than zero, then such overnight London interbank offered rate shall be deemed to be zero.

 

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Parent ” means, with respect to any Bank, any Person as to which such Bank is, directly or indirectly, a subsidiary.

Person ” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

PBGC ” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.

Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Borrower or any Material Subsidiary or to which a Borrower or any Material Subsidiary contributes or has an obligation to contribute.

Qualifying Bank ” means a financial institution that is recognized as a bank by the banking laws in force in its country of incorporation and that exercises in such jurisdiction as its main purpose a true banking activity, having bank personnel, premises, communications devices of its own and the authority of decision-making in accordance with the explanatory notes of the Swiss Federal Tax Administration No. S-02.128 (1.2000), S-02.122.1 (4.1999) and S-02.123 (9.1986).

Recipient ” means, as applicable, (i) the Administrative Agent, (ii) any Bank and (iii) any Issuing Bank.

Register ” has the meaning assigned to that term in Section 11.06(e) .

Reimbursement Obligation ” is defined in Section 4.06 .

Revolving Credit Exposure ” means, with respect to any Bank at any time, the sum of the outstanding principal amount of such Bank’s Advances pursuant to Section 2.01 , its L/C Exposure and its Swingline Exposure at such time.

Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

S&P ” means Standard & Poor’s Financial Services, LLC, or its successor.

Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (ii) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

 

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Sanctioned Country ” means, at any time, a country or territory that is the subject or target of comprehensive country-wide economic or financial sanctions or trade embargoes imposed, administered or enforced by any Person listed in the definition of “Sanctions” (the Sanctioned Countries as of the date hereof being Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person ” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union or any European Union member state, (ii) any Person operating, organized or resident in a Sanctioned Country or (iii) any Person controlled or more than 50% owned by any such Person.

SEC ” means the United States Securities and Exchange Commission or any successor thereto.

Section 4.06 Advance ” means an Advance made by a Bank pursuant to Section 4.06 .

Special Notice ” has the meaning assigned to that term in Section 5.18(a) .

Spin Off ” means the spin-off by the Guarantor of Baxalta Incorporated described in the Form 10.

Subsidiary ” means, at any time, with respect to a Borrower or the Guarantor, any entity with respect to which at such time such Person alone owns, such Person and one or more of its Subsidiaries together own, or any Person controlling such Person owns, in each such case directly or indirectly, capital stock (or the equivalent equity interest) having ordinary voting power to elect a majority of the members of the Board of Directors of such corporation (or, in the case of a partnership or joint venture, having the majority interest in the capital or profits of such entity).

Successor Bank ” has the meaning assigned to that term in Section 5.18(b) .

Swingline Banks ” means JPMorgan Chase Bank, N.A., London Branch, Deutsche Bank AG, London Branch and Citibank, N.A., London Branch, each in its capacity as a lender of Swingline Loans hereunder.

Swingline Exposure ” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Bank at any time shall be the sum of (i) its Applicable Percentage of the total Swingline Exposure at such time, other than with respect to any Swingline Loans made by such Bank in its capacity as a Swingline Bank, and (ii) the outstanding principal amount at such time of all Swingline Loans made by such Bank in its capacity as a Swingline Bank (less the amount of participations funded by the other Banks in such Swingline Loans).

Swingline Loan ” means an Advance made pursuant to Section 3.01 .

 

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Syndication Agents ” means Deutsche Bank Securities Inc. and Citibank, N.A., London Branch, in their capacities as Syndication Agents.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

TB Advance ” has the meaning assigned to that term in Section 5.18(c) .

Terminated Bank ” has the meaning assigned to that term in Section 5.18(b) .

Termination Date ” means, the earlier of (i) July 1, 2020 and (ii) the date on which the Commitments shall have been reduced to zero or terminated in whole pursuant to the terms hereof.

Termination Notice ” has the meaning assigned to that term in Section 5.18(b) .

Unfunded Liability ” means, in the case of a Plan, the amount, if any, by which the present value of all vested benefits accrued to the date of determination under such Plan exceeds the fair market actuarial value of all assets of such Plan allocable to such benefits as of such date, calculated as of the most recent valuation date for such Plan by the Plan’s enrolled actuary using the actuarial assumptions used to calculate the Plan’s minimum funding obligation under ERISA.

Unmatured Event of Default ” means an event which would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

U.S. Borrower ” means any Borrower that is a U.S. Person.

U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate ” has the meaning assigned to such term in paragraph (f) of Section 5.15 .

Wholly-Owned Subsidiary ” of a Person means (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person, and (b) any partnership, limited liability company, association, joint venture or other entity 100% of the ownership interests of which shall at the time be owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person (other than, in the case of Subsidiaries organized in a jurisdiction outside the United States of America, director’s qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Guarantor and its Subsidiaries under applicable law).

SECTION 1.02. Accounting Terms and Principles .

(a) Except as otherwise provided herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial

 

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statements required to be delivered hereunder shall be prepared in accordance with GAAP as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Guarantor’s independent accountants or, in the case of the financial statements required to be delivered pursuant to Section 8.01(g)(i) , as determined by the Guarantor to be required in accordance with then existing GAAP) with the December 31, 2014 audited Consolidated financial statements of the Guarantor and its Consolidated Subsidiaries.

(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Guarantor or the Majority Banks shall so request, the Administrative Agent, the Banks and the Guarantor shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Banks); provided that, until so amended, (a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (b) the Guarantor shall provide to the Administrative Agent and each Bank financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

SECTION 1.03. Other Interpretive Provisions . Unless the context otherwise requires, (a) any pronoun shall include the corresponding masculine, feminine and neuter forms; (b) the words “include” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) any definition of or reference to an agreement, instrument or other document (including this Agreement) shall be construed to refer to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified; (d) any reference to a Person shall be construed to include such Person’s successors and permitted assigns; (e) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections hereof, and Exhibits and Schedules hereto; (f) any reference to a law or regulation shall include all statutory and regulatory provisions consolidating, amending, supplementing, replacing or interpreting such law from time to time; (g) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”; and (h) Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.

ARTICLE II

THE BORROWING FACILITY

SECTION 2.01. The Borrowing Facility . Each Bank severally agrees, on the terms and conditions provided herein, to make Advances denominated in Agreed Currencies to the Borrowers from time to time on any Business Day during the period from the date hereof to the Termination Date in an aggregate Euro Amount that will not result in (a) such Bank’s Revolving Credit Exposure exceeding such Bank’s Commitment or (b) the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments. Subject to Section 5.01 , each Borrowing (other than a Swingline Loan) shall be in an aggregate Euro Amount not less than €10,000,000 and an integral multiple of 5,000,000 units of the applicable currency, shall be made on the same day from the Banks ratably according to their respective Commitments. Within the

 

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limits of each Bank’s Commitment, the Borrowers may borrow Advances under this Section 2.01 , maintain Advances outstanding by continuing such Advances pursuant to Section 2.03 , or prepay Advances pursuant to Section 5.12 , and reborrow Advances under this Section 2.01 . The Aggregate Commitments to lend hereunder shall expire on the Termination Date.

SECTION 2.02. Making the Advances . Each Borrowing (other than a Swingline Loan) shall be requested by facsimile notice given by the Applicable Borrower to the Administrative Agent not later than 10:00 a.m. (London time) three (3) Business Days prior to the proposed Borrowing Date (or, in the case of the initial Advances, such lesser number of days to which the Administrative Agent may agree). Each notice of Borrowing pursuant to this Section 2.02 (a “ Notice of Borrowing ”) shall be in substantially the form of Exhibit 2.02 hereto, specifying the proposed Borrowing Date, aggregate amount of the proposed Borrowing and the Interest Period and Agreed Currency applicable thereto for each such Advance, and shall include such information as shall be required by Section 8.01(h) . If no currency is specified with respect to any requested Borrowing, then the Applicable Borrower shall be deemed to have selected Euro. If no Interest Period is specified with respect to any requested Borrowing, then the Applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall in turn promptly notify each Bank by telephone (to be confirmed immediately in writing) or facsimile of the date, applicable interest rate, applicable Agreed Currency and aggregate amount of such Borrowing and such Bank’s ratable portion of such Borrowing. Each Bank, for the account of its Lending Office, shall, before 12:00 Noon (London time) on the Borrowing Date specified in the notice received from the Administrative Agent pursuant to the preceding sentence, deposit such Bank’s ratable portion of such Borrowing in such funds as then may be customary for the settlement of transactions in such Agreed Currency to the Administrative Agent in accordance with those instructions stipulated on any given drawdown request by the Administrative Agent. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article VI , the Administrative Agent shall make same day funds in the amount of such funds available to the Applicable Borrower by 2:00 p.m. (London time) on the date of Borrowing, at the account specified by the Applicable Borrower in the applicable Notice of Borrowing.

SECTION 2.03. Method of Electing Interest Periods . (a) The Advances included in each Borrowing (other than a Swingline Loan) initially shall have the Interest Period specified by the Applicable Borrower in the applicable Notice of Borrowing. Thereafter, the Applicable Borrower may from time to time elect to continue such Borrowing for a new Interest Period effective on the last day of the then current Interest Period applicable to such Borrowing. In no event shall any Borrower have the option to convert the Agreed Currency in which a Borrowing is denominated to another Agreed Currency; provided that any Borrower may repay such a Borrowing and reborrow in another Agreed Currency in accordance with this Agreement.

Each such election by the Applicable Borrower to continue Advances shall be made by delivering a notice (a “ Notice of Interest Period Election ”) to the Administrative Agent by not later than 10:00 a.m. (London time) at least three Business Days before the continuation selected in such notice is to be effective. If the Applicable Borrower shall fail to issue a Notice of Interest Period Election within three Business Days prior to the end of any Interest Period (unless the Applicable Borrower shall have issued a notice of prepayment in respect of the applicable

 

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Borrowing in accordance with Section 5.12 ), the Advances comprising such Borrowing shall be continued as an Advance in the same Agreed Currency with an Interest Period of one month. A Notice of Interest Period Election may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Borrowing; provided that (i) such portion is allocated ratably among the Advances comprising such Borrowing and (ii) the portion to which such Notice of Interest Period Election applies, and the remaining portion to which it does not apply, are each a Euro Amount not less than €10,000,000 and an integral multiple of 5,000,000 units of the applicable currency.

(b) Each Notice of Interest Period Election shall be substantially in the form of Exhibit 2.03 hereto and shall specify:

(i) the Borrowing (or portion thereof) to which such notice applies;

(ii) the date on which the continuation selected in such notice is to be effective, which shall comply with subsection (a) above; and

(iii) the duration of the new Interest Period.

Each Interest Period specified in a Notice of Interest Period Election shall comply with the provisions of the definition of Interest Period. Each Notice of Interest Period Election shall be irrevocable when given by the Applicable Borrower.

(c) Upon receipt of a Notice of Interest Period Election from the Applicable Borrower pursuant to subsection (a) above, the Administrative Agent shall promptly notify each Bank of the contents thereof.

SECTION 2.04. Determination of Euro Amount; Required Payments; Termination . The Administrative Agent will determine the Euro Amount of:

(i) each Borrowing as of the date three Business Days prior to the Borrowing Date or, if applicable, date of conversion/continuation of such Advance or date of a Swingline Loan,

(ii) each Borrowing as of the first day of each Interest Period and on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Majority Banks, and

(iii) each Letter of Credit as of the date three Business Days prior to the issuance thereof, on the date of issuance thereof and on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Majority Banks.

Each day upon or as of which the Administrative Agent determines the Euro Amount as described in the preceding clauses (i) and (ii) is herein described as a “Computation Date” with respect to each Advance for which a Euro Amount is determined on or as of such day. If at any time the Euro Amount of the Aggregate Revolving Credit Exposure (calculated, with respect to

 

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those Advances denominated in an Agreed Currency other than Euro, as of the most recent Computation Date with respect to each such Advance, and excluding cash collateralized L/C Obligations) exceeds 105% of the Aggregate Commitments, the Borrowers shall immediately repay Advances, repay Swingline Loans and/or cash collateralize any outstanding Letters of Credits in an aggregate principal amount sufficient to cause the remaining outstanding Advances, L/C Obligations (excluding cash collateralized L/C Obligations) and Swingline Loans not to exceed the Aggregate Commitments.

SECTION 2.05. Increase in Aggregate Commitment . From time to time after the Closing Date, the Borrowers may, at their option, seek to increase the Aggregate Commitments by up to an aggregate amount of €100,000,000 (resulting in maximum Aggregate Commitments of up to €300,000,000) upon at least three (3) Business Days’ prior written notice to the Administrative Agent, which notice shall specify the amount of any such increase (which shall not be less than €25,000,000 or such lesser amount to which the Administrative Agent may agree) and shall certify that no Event of Default or Unmatured Event of Default has occurred and is continuing. After delivery of such notice, the Administrative Agent or the Borrowers, in consultation with the Administrative Agent, may offer the increase (which may be declined by any Bank in its sole discretion) in the total Commitments on either a ratable basis to the Banks or on a non pro-rata basis to one or more Banks and/or to other Banks or entities reasonably acceptable to the Administrative Agent and the Borrowers. No increase in the total Commitments shall become effective until the existing or new Banks extending such incremental Commitment amount and the Borrowers shall have delivered to the Administrative Agent a document in form and substance reasonably satisfactory to the Administrative Agent pursuant to which (i) any such existing Bank agrees to the amount of its Commitment increase, (ii) any such new Bank agrees to its Commitment amount and agrees to assume and accept the obligations and rights of a Bank hereunder, (iii) the Borrowers accept such incremental Commitments, (iv) the effective date of any increase in the Commitments is specified and (v) the Borrowers certify that on such date the conditions for a Credit Extension set forth in Section 6.02 are satisfied. Upon the effectiveness of any increase in the total Commitments pursuant hereto, (i) each Bank (new or existing) shall be deemed to have accepted an assignment from the existing Banks, and the existing Banks shall be deemed to have made an assignment to each new or existing Bank accepting a new or increased Commitment, of an interest in each then outstanding Advance (in each case, on the terms and conditions set forth in the Assignment and Assumption) and (ii) the Swingline Exposure and L/C Exposure of the existing and new Banks shall be automatically adjusted such that, after giving effect to such assignments and adjustments, all Revolving Credit Exposure hereunder is held ratably by the Banks in proportion to their respective Commitments. Assignments pursuant to the preceding sentence shall be made in exchange for, and substantially contemporaneously with the payment to the assigning Banks of, the principal amount assigned plus accrued and unpaid interest and Facility and Letter of Credit Fees. Payments received by assigning Banks pursuant to this Section in respect of the principal amount of any Advance shall, for purposes of Section 11.04(b) be deemed prepayments of such Credit Extension. Any increase of the total Commitments pursuant to this Section shall be subject to receipt by the Administrative Agent from the Borrowers of such supplemental opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. No consent of any Bank (other than the Banks agreeing to new or increased Commitments) shall be required for any incremental Commitment provided or Advance made pursuant to this Section 2.05 .

 

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ARTICLE III

SWINGLINE LOANS

SECTION 3.01. Swingline Loans .

(a) Subject to the terms and conditions set forth herein, each Swingline Bank may, in its sole discretion, from the date hereof until the Termination Date make Swingline Loans denominated in Euros to the Borrowers, in an aggregate principal amount for all Swingline Loans not to exceed €15,000,000 at any time outstanding that will not result in (i) such Swingline Bank’s Revolving Credit Exposure exceeding its Commitment or (ii) the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.

(b) To request a Swingline Loan, the Applicable Borrower shall notify the Administrative Agent of such request in writing, not later than 12:00 p.m. (London time) on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the Swingline Bank that is requested to make such Swingline Loan, the requested date (which shall be a Business Day) and amount (which shall be a Euro Amount not less than €250,000 and an integral multiple of 50,000 units of the applicable currency) of the requested Swingline Loan. The Administrative Agent will promptly advise the applicable Swingline Banks of any such notice received from the Applicable Borrower. Each Swingline Bank shall make any requested Swingline Loan which, in its sole discretion, it elects to make, available to the Applicable Borrower by means of a credit to account of the Applicable Borrower with the Administrative Agent designated for such purpose by 3:00 p.m. (London time) on the requested date of such Swingline Loan.

SECTION 3.02. Swingline Loan Participations . Any Swingline Bank may by written notice given to the Administrative Agent require the Banks to acquire participations in all or a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Banks will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Bank, specifying in such notice such Bank’s Applicable Percentage of such Swingline Loans. Each Bank hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any event, if such notice is received by 12:00 noon, Local Time, on a Business Day no later than 5:00 p.m. London Time on such Business Day and if received after 12:00 noon, London Time, on a Business Day shall mean no later than 10:00 a.m. London Time on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of such Swingline Bank, such Bank’s Applicable Percentage of such Swingline Loans. Each Bank acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Bank shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02 with respect to Advances made by such Bank (and Section 2.02 shall

 

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apply, mutatis mutandis , to the payment obligations of the Banks), and the Administrative Agent shall promptly pay to such Swingline Bank the amounts so received by it from the Banks. The Administrative Agent shall notify the Applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to such Swingline Banks. Any amounts received by a Swingline Bank from the Applicable Borrower (or other party on behalf of the Applicable Borrower) in respect of a Swingline Loan after receipt by such Swingline Bank of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Banks that shall have made their payments pursuant to this paragraph and to such Swingline Banks, as their interests may appear; provided that any such payment so remitted shall be repaid to such Swingline Bank or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Applicable Borrower of any default in the payment thereof.

ARTICLE IV

THE LETTER OF CREDIT FACILITY

SECTION 4.01. Obligation to Issue . Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and covenants of the Borrowers herein set forth, each Issuing Bank hereby severally agrees to issue for the account of any Borrower through such Issuing Bank’s branches as it and the such Borrower may jointly agree, one (1) or more Letters of Credit in Agreed Currencies in accordance with this Article IV , from time to time during the period commencing on the date hereof and ending no later than five (5) Business Days prior to the Termination Date. On the Closing Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit issued under and governed in all respects by the terms and conditions of this Agreement, and each Bank shall participate in each Existing Letter of Credit in an amount equal to its Applicable Percentage.

SECTION 4.02. Types and Amounts . No Issuing Bank shall have any obligation to and no Issuing Bank shall:

(a) issue any Letter of Credit if on the date of issuance, before or after giving effect to the Letter of Credit requested hereunder, (i) the Euro Amount of Aggregate Revolving Credit Exposure at such time would exceed the Aggregate Commitments at such time, (ii) any Bank’s Revolving Credit Exposure would exceed its Commitment, (iii) the aggregate outstanding amount of the L/C Obligations would exceed a Euro Amount of €30,000,000 or (iv) the outstanding amount of the L/C Obligations of such Issuing Bank would exceed its L/C Commitment (unless otherwise agreed in writing by such Issuing Bank and prompt notice of such agreement is given to the Administrative Agent); or

(b) issue any Letter of Credit which has an expiration date (or date for payment of any draft presented thereunder) later than the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof,

 

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one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the scheduled Termination Date; provided, however, that an Issuing Bank may issue a Letter of Credit which has an expiration date (or date for payment of any draft presented thereunder) later than the date which is five (5) Business Days immediately preceding the Termination Date (such date being the “LC Collateral Trigger Date”) so long as on or before the LC Collateral Trigger Date the Applicable Borrower has cash collateralized such Letter of Credit in an amount and pursuant to documentation satisfactory to the applicable Issuing Bank (and, if such cash collateral has not been so furnished by the Applicable Borrower prior to the LC Collateral Trigger Date, then on the LC Collateral Trigger Date the Applicable Borrower shall deliver and pledge to the applicable Issuing Bank such cash collateral in such amount). Notwithstanding the foregoing, no Letter of Credit shall be issued which has an expiration date that is more than one (1) year beyond the Termination Date.

SECTION 4.03. Conditions .

(a) In addition to being subject to the satisfaction of the conditions contained in Sections 6.01 and 6.02, the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:

(i) the Applicable Borrower shall have delivered to the applicable Issuing Bank (with a copy to the Administrative Agent) an L/C Application in the manner prescribed in Section 4.04, and the proposed Letter of Credit shall be reasonably satisfactory to such Issuing Bank as to form and content; and

(ii) as of the date of issuance, no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no request or directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of that Letter of Credit or shall impose upon the Issuing Bank with respect to any Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Bank is not otherwise compensated) or any unreimbursed loss, cost or expense which was not applicable, in effect and known to the Issuing Bank as of the date of this Agreement and which the Issuing Bank in good faith deems material to it.

(b) No Issuing Bank shall extend, renew, or amend any Letter of Credit unless the requirements of this Section 4.03 are met as though a new Letter of Credit were then being requested and issued.

(c) Notwithstanding anything herein to the contrary, the Issuing Bank shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund in violation of applicable Sanctions any activity or business of or with any Sanctioned Person or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement.

 

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SECTION 4.04. Procedure for Issuance of Letters of Credit .

(a) Prior to the issuance of each Letter of Credit, and as a condition of such issuance, the Applicable Borrower shall deliver to the Issuing Bank (with a copy to the Administrative Agent) an L/C Application signed by the Applicable Borrower, together with such other documents or items as may be required pursuant to the terms thereof. Unless the Issuing Bank shall otherwise agree, each Letter of Credit shall be issued no earlier than two (2) Business Days after delivery of the foregoing documents, which delivery may be by the Applicable Borrower to the Issuing Bank by facsimile transmission, telex or other electronic means followed by delivery of executed originals within five (5) days thereafter. The documents so delivered shall be in compliance with the requirements set forth in Sections 4.02 and 4.03 , and shall specify therein (i) the stated amount of the Letter of Credit requested, (ii) the effective date of issuance of such requested Letter of Credit, which shall be a Business Day, (iii) the date on which such requested Letter of Credit is to expire, which shall be a Business Day not later than five (5) Business Days prior to the Termination Date, except as permitted in Section 4.02(ii) , and (iv) the aggregate amount of L/C Obligations which are outstanding and which will be outstanding after giving effect to the requested Letter of Credit issuance. Subject to the terms and conditions of Sections 4.02 and 4.03 , and provided that the applicable conditions set forth in Sections 6.01 and 6.02 shall, to the knowledge of the Issuing Bank, have been satisfied, the Issuing Bank shall, on the requested date, issue a Letter of Credit on behalf of the Applicable Borrower in accordance with the Issuing Bank’s usual and customary business practices (and a copy of such issued Letter of Credit shall be delivered by the Issuing Bank to the Administrative Agent). In addition, any amendment of an Existing Letter of Credit that has the effect of increasing the face amount thereof or extending the expiration date thereof shall be deemed to be an issuance of a new Letter of Credit and shall be subject to the requirements of this Section 4.04 .

(b) The applicable Issuing Bank shall give the Administrative Agent written or telex notice of the issuance of a Letter of Credit; provided , however , that the failure to provide such notice shall not result in any liability on the part of such Issuing Bank.

(c) Notwithstanding anything contained in any L/C Application or any document executed in connection therewith to the contrary, in the event any term or provision of such L/C Application or other document is inconsistent with any term or provision of this Agreement, the terms and provisions of this Agreement shall control and prevail.

SECTION 4.05. Letter of Credit Participation . Unless a Bank shall have notified the Issuing Bank, prior to its issuance of a Letter of Credit, that any applicable condition precedent set forth in Sections 6.01 or 6.02 had not then been satisfied, immediately upon the issuance of each other Letter of Credit hereunder, each Bank shall be deemed to have automatically, irrevocably and unconditionally purchased and received from the applicable Issuing Bank an undivided interest and participation in and to such Letter of Credit, the obligations of the Applicable Borrower in respect thereof, and the liability of such Issuing Bank thereunder (collectively, as to each Bank, an “ L/C Interest ”) in an amount equal to the amount

 

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available for drawing under such Letter of Credit multiplied by such Bank’s Applicable Percentage. Each Issuing Bank will notify each Bank that has a Commitment promptly upon presentation to it of an L/C Draft or upon any other draw under a Letter of Credit. On or before the Business Day on which an Issuing Bank makes payment of each such L/C Draft or, in the case of any other draw on a Letter of Credit, on demand by the Administrative Agent, each Bank shall make payment to the Administrative Agent, for the account of the applicable Issuing Bank, in immediately available funds in an amount equal to the amount of the payment under the L/C Draft or other draw on the Letter of Credit multiplied by such Bank’s Applicable Percentage. Except to the extent set forth in the last sentence of this Section 4.05 , the obligation of each Bank to reimburse the Issuing Banks under this Section 4.05 shall be unconditional, continuing, irrevocable and absolute without counterclaim or set-off; provided , however , the obligation of each Bank shall not extend to payments made under a Letter of Credit resulting from the Issuing Bank’s gross negligence or willful misconduct in honoring any L/C Draft. In the event that any Bank fails to make payment to the Administrative Agent of any amount due under this Section 4.05 , the Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Bank hereunder until the Administrative Agent receives such payment from such Bank or such obligation is otherwise fully satisfied, and such Bank shall pay to the Administrative Agent, for the account of the applicable Issuing Bank, interest on the amount of such Bank’s outstanding obligation at an interest rate reasonably determined by the Administrative Agent in accordance with banking industry practices on interbank compensation; provided , however , that nothing contained in this sentence shall relieve such Bank of its obligation to reimburse the applicable Issuing Bank for such amount in accordance with this Section 4.05 . Notwithstanding the foregoing, no Bank shall have any reimbursement, payment or other obligation with respect to any cash collateralized Letter of Credit issued pursuant to the proviso in Section 4.02(b)(ii) hereof.

SECTION 4.06. Reimbursement Obligation . The Applicable Borrower agrees unconditionally, irrevocably and absolutely to pay promptly to the Administrative Agent, for the account of the Banks, the amount of each drawing made under or pursuant to a Letter of Credit issued for its account (such obligation of the Applicable Borrower to reimburse the Administrative Agent for a drawing made under a Letter of Credit, a “ Reimbursement Obligation ” with respect to such Letter of Credit) plus all other charges and expenses with respect thereto specified in Section 4.07 or in the applicable L/C Application. If the Applicable Borrower at any time fails to repay a Reimbursement Obligation pursuant to this Section 4.06 , the Applicable Borrower shall be deemed to have elected to borrow under a Borrowing, as of the date of the drawing giving rise to the Reimbursement Obligation and equal in amount to the amount of the unpaid Reimbursement Obligation. Such Borrowing shall be made automatically, without notice, without any requirement to satisfy the conditions precedent otherwise applicable to a Borrowing and without regard to minimum amounts or integral multiples of any amount otherwise required for a Borrowing. Such Borrowing shall be comprised of Advances made by the Banks, each Advance being in the amount of the portion of the related drawing that shall have been funded by the applicable Bank. The proceeds of such Borrowing shall be used to repay such Reimbursement Obligation.

SECTION 4.07. Issuing Bank Charges . In addition to the fees described in Section 5.04(b) , the Applicable Borrower agrees to pay to each Issuing Bank, (i) on the date of issuance of each Letter of Credit issued for its account (or on such other date as may be agreed

 

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between the Applicable Borrower and the applicable Issuing Bank), a fronting fee in respect of such Letter of Credit in a separately agreed amount, and (ii) all reasonable and customary fees and other issuance, amendment, document examination, negotiation and presentment expenses and related charges in connection with the issuance, amendment, presentation of L/C Drafts, and the like customarily charged by the Issuing Banks with respect to Letters of Credit, including standard commissions, payable promptly following delivery to the Applicable Borrower of each invoice in respect of any such amount. The Existing Letters of Credit shall not be subject to the charges described herein to the extent such charges are duplicative of charges paid with respect thereto pursuant to the Existing Credit Agreement.

SECTION 4.08. Issuing Bank Reporting Requirements . In addition to the notices required by Section 4.04(b) , each Issuing Bank shall, no later than the tenth Business Day following the last day of each month, provide to the Administrative Agent, upon the Administrative Agent’s request, schedules, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issue, account party, amount, expiration date and the reference number of each Letter of Credit issued by it outstanding at any time during such month and the aggregate amount payable by each Applicable Borrower during such month. In addition, upon the request of the Administrative Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any Letter of Credit to which the Issuing Bank is party and such other documentation as may reasonably be requested by the Administrative Agent. Upon the request of any Bank, the Administrative Agent will provide to such Bank information concerning such Letters of Credit.

SECTION 4.09. Indemnification; Exoneration .

(a) In addition to amounts payable as elsewhere provided in this Article IV , the Applicable Borrower hereby agrees to protect, indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and each Bank from and against any and all liabilities and costs which the Administrative Agent, such Issuing Bank or such Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit for its account other than as a result of the gross negligence or willful misconduct of the Issuing Bank as determined in a non-appealable judgment by a court of competent jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “ Governmental Acts ”).

(b) As among the Applicable Borrower, the Banks, the Administrative Agent and the Issuing Banks, the Applicable Borrower assumes all risks of the acts and omissions of, or misuse of each Letter of Credit by, the beneficiary of such Letter of Credit. In furtherance and not in limitation of the foregoing, neither the Administrative Agent, any Issuing Bank nor any Bank shall be responsible for (unless caused by its gross negligence or willful misconduct): (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any other party in connection with the application for and issuance of the Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;

 

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(iii) failure of the beneficiary of a Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, facsimile, email or other similar form of electronic transmission or otherwise; (v) errors in interpretation of technical trade terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) any consequences arising from causes beyond the control of the Administrative Agent, the Issuing Banks and the Banks, including any Governmental Acts. None of the above shall affect, impair, or prevent the vesting of any Issuing Bank’s rights or powers under this Section 4.09 .

(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Issuing Bank under or in connection with the Letters of Credit or any related certificates shall not, in the absence of gross negligence or willful misconduct, put the applicable Issuing Bank, the Administrative Agent or any Bank under any resulting liability to the Applicable Borrower or relieve the Applicable Borrower of any of its obligations hereunder to any such Person.

(d) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section 4.09 shall survive the payment in full of the Advances and other obligations hereunder, the termination of the Letters of Credit and the termination of this Agreement.

ARTICLE V

GENERAL TERMS

SECTION 5.01. Illegality; Interest Rate Inadequate or Unfair . The obligation of each Bank to extend an Advance on the date therefor is subject to the following:

(a) If, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or its Lending Office) to make, maintain or fund its Advances, such Bank shall so notify the Administrative Agent. The Administrative Agent and such Bank shall forthwith give notice thereof to the other Banks and the Borrowers, whereupon until such Bank notifies the Borrowers and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make (or continue) Advances shall be suspended. If such Bank (A) shall determine that it may not lawfully continue to maintain an outstanding Advance until the last day of the current Interest Period therefor, (B) shall so specify in a written notice to the Applicable Borrower and the Administrative Agent and (C) shall deliver to the Applicable Borrower and the Administrative Agent an opinion of counsel concurring in such determination (unless three (3) or more Banks have reached a similar determination, in which case no such opinion shall be required), then the Applicable Borrower shall, on the last Business Day on which such Bank may lawfully continue such Advance, repay such Advance.

 

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(b) If, with respect to Borrowings to consist of Advances denominated in any Agreed Currency and having a particular Interest Period (i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon all parties hereto) that by reason of circumstances affecting generally the London interbank market, and after using its best efforts to ascertain the interest rate applicable to the Advances in such Agreed Currency, adequate and reasonable means do not exist for ascertaining such applicable rate for such Interest Period, or (ii) by the Business Day before the first day of any Interest Period in respect of a Borrowing, the Administrative Agent shall have received notice from the Majority Banks that after using their respective best efforts to obtain deposits in the applicable Agreed Currency for such Interest Period, such deposits are not available to such Banks (as such best efforts and unavailability are conclusively certified in writing to the Administrative Agent and the Borrowers) in the ordinary course of business in the London interbank market in sufficient amounts to make their respective Advances, then, in each case, the Administrative Agent shall by 12:00 Noon (London time) on such Business Day notify the Borrowers of such event, and the right of the Borrowers to select Advances in such Agreed Currency for such Borrowing or any subsequent Borrowing with an Interest Period having the duration of such Interest Period shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist. The obligation of the Banks to make Advances in connection with any Notice of Borrowing that requests Advances in the applicable Agreed Currency for an Interest Period having the duration of such affected Interest Period shall be ineffective. In the case of an outstanding Notice of Interest Period Election that requests Advances in the applicable Agreed Currency for an Interest Period having the duration of such affected Interest Period at the time any such suspension shall occur, such Notice shall be deemed to request Advances for the next shortest (or, if no shorter Interest Period is available, the next longest) Interest Period that is available hereunder or, if no Interest Period is available for such Agreed Currency, such Notice shall become ineffective.

(c) If the Majority Banks shall, by 11:00 a.m. (London time) on the Business Day before the first day of any Interest Period in respect of a Borrowing to consist of Advances denominated in an Agreed Currency for a particular Interest Period, notify the Administrative Agent and the Borrowers (setting forth in writing the reasons therefor) that the Eurocurrency Rate for Advances for such Interest Period will not adequately reflect the cost to such Banks of making or funding their respective Advances for such Borrowing, the right of the Borrowers to select Advances in such Agreed Currency for such Interest Period and any subsequent request for a Borrowing in such Agreed Currency for an Interest Period with a duration equal to that of such Interest Period shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist. The obligation of the Banks to make Advances in connection with any Notice of Borrowing that requests Advances in the applicable Agreed Currency for an Interest Period having the duration of such affected Interest Period shall be ineffective. In the case of an outstanding Notice of Interest Period Election that requests Advances in the applicable Agreed Currency for an Interest Period having the duration of such affected Interest Period at the time any such suspension shall occur, such Notice shall be deemed to request Advances for the next shortest (or, if no shorter Interest Period is available, the next longest) Interest Period that is available hereunder or, if no Interest Period is available for such Agreed Currency, such Notice shall become ineffective.

 

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SECTION 5.02. Effect of Notice of Borrowing; Maximum Number of Borrowings . (a) Subject to Section 5.01 , each Notice of Borrowing and Notice of Interest Period Election shall be irrevocable and binding on the Applicable Borrower. In the event that a Notice of Borrowing or Notice of Interest Period Election is made by telephone and the written confirmation thereof differs in any respect from such telephone notice, the information contained in the telephone notice or the written confirmation, as the case may be, upon which the Administrative Agent shall have relied, as evidenced by its corresponding notice to the Banks, shall control for purposes of Advances to be made or continued under this Agreement.

(b) A Notice of Borrowing shall be rejected by the Administrative Agent, and the Banks shall have no obligation to extend any Advances that may be requested in such Notice of Borrowing, if after giving effect to the Borrowing requested in such Notice of Borrowing there would then be more than ten (10) Borrowings outstanding (excluding Swingline Loans).

SECTION 5.03. Effect of Failure to Borrow or Fund . (a) The Applicable Borrower shall indemnify each Bank against all direct out-of-pocket losses and reasonable expenses incurred by such Bank as a result of any failure by such Borrower to fulfill on or before the date specified for a Borrowing the applicable conditions set forth in Article VI to the extent of all direct out-of-pocket losses and reasonable expenses incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the Advance to be made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is not made on such date. The Applicable Borrower shall not be liable to any Bank under this Section 5.03(a) with respect to consequential damages or loss of anticipated profits arising or incurred by such Bank in connection with the Applicable Borrower’s failure to fulfill timely the applicable conditions set forth in Article VI .

(b) Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s ratable portion of such Borrowing, the Administrative Agent may assume that such Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with the terms of Section 2.02 and the Administrative Agent may, in reliance upon such assumption make available to the Applicable Borrower on such date a corresponding amount. If and to the extent that such Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the Applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Applicable Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Applicable Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Bank, at an interest rate reasonably determined by the Administrative Agent in accordance with banking industry practices on interbank compensation. If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this Agreement.

(c) The failure of any Bank to make any Advance to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Advance to be made by such other Bank on the date of any Borrowing.

 

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SECTION 5.04. Fees and Certain Credit Rating Determinations . (a) Facility Fees . Each Borrower agrees to pay to the Administrative Agent for the ratable account of the Banks a facility fee (the “ Facility Fee ”) based on the average daily amount of each Bank’s portion of the Aggregate Commitments (whether used or unused) and, after the termination of the Commitments, upon each Bank’s Applicable Percentage of any remaining outstanding Revolving Credit Exposure, in each case in accordance with Schedule 5.

The Facility Fee shall begin accruing on the date hereof and shall be payable quarterly, in arrears, not later than the last day of each January, April, July and October, on the Termination Date and, if applicable, thereafter on demand; provided that if any Bank ceases to be a party hereto prior to the Termination Date, accrued and unpaid Facility Fees payable to such Bank shall be paid on the date such Bank’s Commitment is reduced to zero. Each Borrower shall pay its pro-rata (determined based on the number of Borrowers, i.e., initially 50% each) share of the Facility Fee when due.

(b) Letter of Credit Fees . In addition to the fees described in Section 4.07 , the Applicable Borrower agrees to pay to the Administrative Agent for the account of each Bank a letter of credit fee (the “ Letter of Credit Fee ”), in respect of any period, at the Letter of Credit Fee Rate on the average daily aggregate amount of such Bank’s L/C Exposure in respect of Letters of Credit issued for such Borrower’s account and outstanding during such period.

Accrued and unpaid Letter of Credit Fees shall be payable, in arrears, (i) on the last day of each January, April, July and October, (ii) on the Termination Date and (iii) thereafter on demand; provided that (a) if any Bank ceases to be a party hereto prior to the Termination Date, accrued and unpaid Letter of Credit Fees payable to such Bank shall be paid on the date such Bank’s Commitment is reduced to zero; and (b) if any Letter of Credit is cash collateralized pursuant to Section 4.02(b) (a “ Collateralized LC ”), then accrued and unpaid Letter of Credit Fees on such Collateralized LC shall not be payable on the Termination Date, but shall continue to be payable as provided in clause (i)  above and also shall be payable on the date of the expiration or termination of such Collateralized LC.

SECTION 5.05. Reduction of the Commitments . The Borrowers may, upon at least three (3) Business Days’ written notice to the Administrative Agent (received not later than 10:00 a.m. (London time)), terminate in whole or reduce ratably in part the respective Commitments of the Banks on a permanent basis; provided that (i) any such reduction shall not cause the Aggregate Commitments to be less than the Aggregate Revolving Credit Exposure at such time, and (ii) in the case of any partial reduction of the Commitments, such partial reduction shall be in an aggregate amount not less than the lesser of (A) €10,000,000 (or an integral multiple of €5,000,000 in excess thereof) and (B) the amount by which the Aggregate Commitments exceed the Aggregate Revolving Credit Exposure at such time.

 

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SECTION 5.06. Repayment . The Applicable Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Bank the then unpaid principal amount of each Advance (other than a Swingline Loan) made to such Borrower on the Termination Date and (ii) to the Administrative Agent for the account of the applicable Swingline Banks the then unpaid principal amount of each Swingline Loan made to such Borrower on the earlier of the Termination Date and the fifth Business Days after such Swingline Loan is made.

SECTION 5.07. Interest . The Applicable Borrower shall pay interest on the unpaid principal amount of each Advance (other than a Swingline Loan or Section 4.06 Advance) made to it by each Bank from the date of such Advance until such principal amount shall be paid in full at a rate per annum equal at all times during each Interest Period for such Advance to the Eurocurrency Rate for such Interest Period plus the Applicable Margin (such rate to change when and as the Applicable Margin changes), payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three (3) months, on the date during such Interest Period that occurs three (3) months after the first day of such Interest Period, and, in the case of each Bank, on the date such Bank’s Commitment shall be reduced to zero. The Applicable Borrower shall pay interest on the unpaid principal amount of each Swingline Loan (or Section 4.06 Advance) made to it from the date of such Swingline Loan (or Section 4.06 Advance) until such principal amount shall be paid in full at a rate per annum equal to the Overnight LIBO Rate (or, solely with respect to Swingline Loans, prior to the Banks funding their participations in such Swingline Loan, at such other rate as may be agreed between the Applicable Borrower and the applicable Swingline Bank). Interest pursuant to the preceding sentence shall be paid quarterly in arrears on the last day of January, April, July and October and at final maturity (whether due to acceleration or otherwise) and thereafter upon demand.

SECTION 5.08. Additional Interest on Advances .

(a) The Applicable Borrower shall pay to each Bank, so long as such Bank shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Advance of such Bank made to such Borrower, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times during the Interest Period for such Advance to the remainder obtained by subtracting (i) the Eurocurrency Rate for such Interest Period from (ii) the rate obtained by dividing the applicable rate referred to in clause (i) above by that percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is payable on such Advance.

(b) For so long as any Bank is required to make special deposits with or comply with reserve assets, liquidity, cash margin or other requirements of any monetary or other authority (including any such requirement imposed by the Bank of England, the Financial Services Authority, the European Central Bank, any other central bank or the European System of Central Banks, but excluding requirements reflected in the Eurocurrency Rate Reserve Percentage) in respect of any of such Bank’s Advances, such Bank shall be entitled to require the Applicable Borrower to pay, contemporaneously with each payment of interest on each of such Bank’s Advances to it subject to such requirements, additional interest on such Advance at a rate per annum specified by such Bank to be the actual cost to such Bank of complying with such requirements in relation to such Advance.

(c) Any additional interest owed pursuant to subsection (a) or (b) above shall be determined by such Bank and such Bank shall deliver written notice thereof to the Applicable Borrower through the Administrative Agent; provided that in the case of any such required reserves, special deposits or other requirements referred to in subsection (a) or (b) above that are imposed after the date of this Agreement, the Applicable Borrower shall not be required to compensate a Bank pursuant to this Section for any additional interest incurred more than 120 days prior to the date that such Bank notifies the Applicable Borrower of such required reserves, special deposits or other requirements and of such Bank’s intention to claim compensation therefor; provided , further that, if any of the above referenced requirements are retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof. Any amount payable to a Bank pursuant to this Section 5.08 shall be paid to the Administrative Agent for the account of such Bank.

 

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SECTION 5.09. Interest on Overdue Principal . If any amount of principal is not paid when due (whether at stated maturity, by acceleration or otherwise), that amount of principal shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to two percent (2%) per annum above the Eurocurrency Rate plus the Applicable Margin in effect from time to time.

SECTION 5.10. Interest Rate Determinations . The Administrative Agent shall give prompt notice to the Borrowers and the Banks of any applicable interest rate determined by the Administrative Agent for purposes of Section 5.07 .

SECTION 5.11. Performance of Banks’ Obligations . Each Bank shall use commercially reasonable efforts to keep apprised of all events and circumstances (a) that would excuse or prohibit such Bank from performing its obligation to make Advances hereunder pursuant to Section 5.01 that would permit such Bank to demand additional interest or increased costs pursuant to Section 5.08 or Section 5.13 or (c) that would permit the Administrative Agent or the Majority Banks pursuant to Section 11.13 to denominate an Advance in Euro rather than the applicable Agreed Currency. Such Bank shall, as soon as practicable after becoming aware of any such event or circumstance, use commercially reasonable efforts, to the extent permitted by law, to perform its obligations to make Advances through another office or lending office, and with respect to increased costs or additional interest, to reduce such increased costs or additional interest (if the use of such other office or lending office or such reduction would not adversely affect the performance of such obligations or repayment of the Advances or result in, in any material respect, any increased cost, loss, liability or other material disadvantage to such Bank in such Bank’s reasonable judgment), in either case if by taking the action contemplated by the foregoing, such event or circumstance would cease to exist.

SECTION 5.12. Optional Prepayments . (a) Any Borrower may prepay Borrowings without penalty upon notice to the Administrative Agent, given not later than 9:00 a.m. (London time) (or, with respect to Swingline Loans, 11:00 a.m. (London time) on the proposed date of prepayment (which shall be a Business Day) by telephone (to be confirmed immediately in writing) or facsimile, stating in such notice the proposed date and aggregate

 

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principal amount of the prepayment, and if such notice is given, the Applicable Borrower shall prepay the outstanding principal amount of the Advances made as part of the same Borrowing in whole or in part (and if in part, in an aggregate Euro Amount not less than €10,000,000 and an integral multiple of €5,000,000), or, with respect to Swingline Loans, in an aggregate amount not less than €1,000,000 and an integral multiple of 500,000 units of the applicable currency) by paying the principal amount to be prepaid together with accrued interest thereon and other amounts then due and owing with respect to such Borrowing, if any, hereunder to the date of prepayment; provided that if any Borrowing made pursuant to Section 4.06 does not meet the minimum amount or integral multiple requirements for prepayments set forth above, then the next prepayment pursuant to this Section 5.12 shall be in an amount that will cause each outstanding Borrowing (other than any Swingline Loan) to be in an aggregate Euro Amount not less than €10,000,000 and an integral multiple of 5,000,000 units of the applicable currency. Each such optional prepayment shall be applied to prepay ratably the Advances of the several Banks included in such Borrowing or, as applicable, the Swingline Loan being repaid. If a Borrower prepays any Borrowing on any day other than the last day of an Interest Period therefor, such Borrower shall reimburse each Bank for any losses, costs and expenses contemplated in Section 11.04(b) .

(b) Upon receipt of a notice of prepayment pursuant to this Section 5.12 , the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share, if any, of such prepayment.

SECTION 5.13. Increased Costs . (a) Subject to Section 5.11 , if, after the date of this Agreement, any of the following (a “ Change in Law ”) shall occur:

(x) due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve, requirements included in the Eurocurrency Rate Reserve Percentage in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), either (x) there shall be any increase in the cost to any Bank of agreeing or committing to make or making, funding or maintaining any Advances (including any participations in Swingline Loans) hereunder or issuing or participating in any Letter of Credit or (y) any Recipient shall be subject to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(y) either (i) the introduction of or any change in or in the interpretation of any law, rule, regulation or guideline adopted after the date hereof and arising out of the July 1988 report of the Basel Committee on Banking Regulation and Supervisory Practices entitled “International Convergence of Capital Measurement and Capital Standards” or (ii) compliance by any Bank with any law or regulation, or with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or any corporation controlling such Bank and such Bank determines that the amount of such capital or liquidity is increased by or based upon the existence of such Bank’s commitment to lend hereunder and other commitments of this type, or upon the making or funding of its Advances (including any participations in Swingline Loans) hereunder or upon the issuing or maintaining of its L/C Interest hereunder,

 

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then the Borrowers shall from time to time, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank, within 120 days after such written demand, additional amounts sufficient to (i) in the case of any of the events described in clause (x) above, reimburse such Bank for such increased cost, such increased cost to be determined by such Bank using its customary methods therefor (and, if such Bank uses from time to time more than one such method, the method chosen for application hereunder shall be that method which most accurately determines such increased cost), and (ii) in the case of any of the events described in clause (y) above, compensate such Bank in light of such circumstances, to the extent such Bank reasonably determines such increase in capital or liquidity to be allocable to the existence of such Bank’s commitment to lend or maintain Advances or to issue or maintain its L/C Interests hereunder. A certificate as to any such amount (demonstrating, in reasonable detail, the calculations used by such Bank to determine such amount), submitted to the Borrowers and the Administrative Agent by such Bank, shall be prima facie evidence thereof. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued or implemented.

(b) Failure or delay on the part of any Bank or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bank’s or Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Bank or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than 120 days prior to the date that such Bank or Issuing Bank, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions, and of such Bank’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 5.14. Payments and Computations . (a) The Applicable Borrower shall make each payment hereunder not later than 12:00 noon (London time) on the day when due and, with respect to principal of or interest on any Advance, in the currency in which such Advance was made to the Applicable Borrower, in such funds as are then customary for settlement of international transactions in such currency and without set-off, counterclaim or other deduction. All other payments made hereunder shall be payable in immediately available funds in Euro. All payments hereunder shall be made to the Administrative Agent at the Administrative Agent’s address specified in Section 11.02 , or at any other Lending Office of the Administrative Agent specified in writing by the Administrative Agent to the Applicable Borrower, and shall be applied ratably by the Administrative Agent among the Banks. The Administrative Agent is hereby authorized to charge the Applicable Borrower’s account with the

 

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Administrative Agent, after notice to the Applicable Borrower of the amount to be charged, for each payment of principal, interest and fees as such payment becomes due. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to such payment ratably (in accordance with all like obligations then due and payable to which such payment relates) to the Banks for the account of their respective Lending Offices, and like funds relating to the payment of any other amount payable to any Bank, to such Bank for the account of its Lending Office, in each case to be applied in accordance with the terms of this Agreement.

(b) Notwithstanding the foregoing provisions of this Section 5.14 , if, after the making of any Advance in any currency other than Euro, currency control or exchange regulations are imposed in the country that issued such currency with the result that the type of currency in which the Advance was made (the “ Original Currency ”) no longer exists or the Applicable Borrower is not able to make payment to the Administrative Agent for the account of the Banks in such Original Currency, then all payments to be made by the Applicable Borrower hereunder in such currency shall instead be made when due in Euro in an amount equal to the Euro Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Applicable Borrower take all risks of the imposition of any such currency control or exchange regulations.

(c) All calculations of interest, Facility Fees and Letter of Credit Fees shall be made on the basis of a year of 360 days (or, in the case of any Agreed Currency other than Euro, on the basis of the convention customarily applicable to such currency), in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes in the absence of manifest error.

(d) Whenever any payment hereunder or under any Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, Facility Fees and Letter of Credit Fees, as the case may be. If such extension would cause such payment with respect to an Advance to be made in the next following calendar month, such payment shall be made on the immediately preceding applicable Business Day and the period of time during which such payment would have been outstanding but for compliance with this provision shall not be included in the computation of payment of interest with respect thereto.

(e) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment by such Borrower is due to the Banks hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due to such Bank. If and to the extent such Borrower shall not have so made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at an interest rate determined by the Administrative Agent in accordance with banking industry practices on interbank compensation.

 

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SECTION 5.15. Taxes . (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b) The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c) The Loan Parties shall jointly and severally indemnify each Recipient, within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Applicable Borrower by a Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive absent manifest error.

(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 11.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this paragraph (d).

 

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(e) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 5.15 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f) (i) Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Applicable Borrower and the Administrative Agent, at the time or times reasonably requested by such Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by such Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.15(f)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank.

(ii) Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Borrower:

any Bank that is a U.S. Person shall deliver to such Borrower and the Administrative Agent on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;

any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable:

(i) in the case of a Foreign Bank claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8BEN-E

 

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establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8ECI;

(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8BEN-E; or (iv) to the extent a Foreign Bank is not the beneficial owner, executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;

any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), executed originals (or copies that meet the requirements of the Code, United States Treasury Regulations and official IRS guidance) of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

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if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to such Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iii) Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Applicable Borrower and the Administrative Agent in writing of its legal inability to do so.

(g) Any Bank claiming additional amounts payable pursuant to this Section 5.15 shall (at the reasonable request of the Applicable Borrower) use reasonable efforts to change the jurisdiction of its office or Lending Office if the making of such change would avoid the need for, or reduce the amount of, any additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Bank, subject such Bank to any unreimbursed costs or expense and would not be otherwise materially disadvantageous to such Bank. The Applicable Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Bank in connection with any such actions.

(h) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.15 (including additional amounts paid pursuant to this Section 5.15 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.15 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnified party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.15(h) , in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 5.15(h) if such payment would place such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if

 

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the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and if the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 5.15(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.

(i) Each party’s obligations under this Section 5.15 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Bank, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations under any Loan Document.

SECTION 5.16. Noteless Agreement; Evidence of Indebtedness . (a) Each Bank shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Bank resulting from each Advance made by such Bank to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Bank by such Borrower from time hereunder.

(b) The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Advance made to each Borrower hereunder, the Agreed Currency in which such Advance is denominated and the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Applicable Borrower to each Bank hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Applicable Borrower and each Bank’s share thereof.

(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Advances therein recorded; provided , however , that the failure of the Administrative Agent or any Bank to maintain such accounts or any error therein shall not in any manner affect the obligation of the Applicable Borrower to repay its Borrowings in accordance with their terms.

(d) Any Bank may request that its Advances to a Borrower be evidenced by a promissory note (each a “ Note ”). In such event, such Borrower shall prepare, execute and deliver to such Bank a Note or separate Notes evidencing such Advances, at such Bank’s request, payable to such Bank in a form or forms supplied by the Administrative Agent. Thereafter, the Advances evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 11.06 ) be represented by one or more Notes payable to the payee named therein or any assignee pursuant to Section 11.06 , except to the extent that any such Bank or assignee subsequently returns any such Note for cancellation and requests that such Advances once again be evidenced as described in subsections (a) and (b) above.

SECTION 5.17. Sharing of Payments, Etc . Except for payments made pursuant to Section 5.18 , if any Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of principal of or interest on any Advance (including any participation in a Swingline Loan) made by it or any L/C Interest in excess of its ratable share of all payments obtained by Banks on account of, as applicable, principal of or interest on the Advances (including any participation in a Swingline Loan) comprising the Borrowing to which such Advance relates or in respect of the Letter of Credit to

 

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which such L/C Interest relates, such Bank shall forthwith purchase from the other Banks which shall then have Advances (including any participation in a Swingline Loan) outstanding comprising a part of such Borrowing participations in the Advances (including any participation in a Swingline Loan) comprising a part of such Borrowing (or, as applicable, purchase from the other Banks participations in the Swingline Loans or L/C Interests in the related Letter of Credit) as shall be necessary to cause such purchasing Bank to share the excess payment (net of any expenses which may be incurred by such Bank in obtaining or preserving such excess payment) ratably with respect to such Borrowing or Letter of Credit with each of such other Banks. If all or any portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase from each selling Bank shall be rescinded and such selling Bank shall repay to the purchasing Bank the purchase price to the extent of such recovery together with an amount equal to such selling Bank’s ratable share (according to the proportion of (i) the amount of such selling Bank’s required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered. The Borrowers agree that any Bank so purchasing a participation from another Bank pursuant to this Section 5.17 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of each Applicable Borrower in the amount of such participation. Nothing contained herein shall require any Bank to exercise any right it may have of set-off, bankers’ lien, counterclaim or similar right or shall affect the right of any Bank to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of an Applicable Borrower not evidenced by this Agreement or the Notes. If under any applicable bankruptcy, insolvency or other similar law, any Bank obtains a secured claim in lieu of a set-off or other payment to which this Section 5.17 would apply, such Bank shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Banks entitled under this Section 5.17 to share in the benefits of any recovery on such secured claim.

SECTION 5.18. Termination and Prepayment with Respect to Any Bank . (a) In addition to the right of the Borrowers to terminate in whole or reduce ratably the unused portion of the Commitments as described in Section 5.05 and the right of the Borrowers to ratably prepay Advances (including any participation in a Swingline Loan) as described in Section 5.12 , the Borrowers shall have the right to terminate the unused portion of the Commitment of any Bank and to prepay all outstanding Advances made by such Bank in the manner described in this Section 5.18 if a Bank becomes a Defaulting Bank or a Non-Consenting Bank or if any Borrower shall have received notice (a “ Special Notice ”) that such Bank (i) cannot extend an Advance in any Agreed Currency and shall exercise its rights pursuant to Section 5.01(a) , (ii) claims additional interest pursuant to Section 5.08 , (iii) claims reimbursement for increased costs or reduced returns pursuant to Section 5.13 , (iv) claims reimbursement for Taxes pursuant to Section 5.15 or (v) elects not to make an Advance in the applicable Agreed Currency pursuant to Section 11.13 .

(b) Upon receipt by a Borrower of a Special Notice from any Bank or upon a Bank becoming a Defaulting Bank or a Non-Consenting Bank, the Borrowers may elect to terminate the unused portion of the Commitment of such Bank by giving notice thereof (a “ Termination Notice ”) to such Bank and to the Administrative Agent as follows: (1) in the case of a Non-Consenting Bank or a Bank which delivers a Special Notice, on or before the thirtieth

 

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day following the date such Bank becomes a Non-Consenting Bank or delivers such Special Notice, or (2) in the case of a Defaulting Bank, after the date such Bank becomes a Defaulting Bank and while it remains a Defaulting Bank, in each case, specifying therein (i) the name of such Bank (“ Terminated Bank ”), (ii) the proposed effective date of termination (“ Bank Termination Date ”) of the unused portion of such Terminated Bank’s Commitment, which date shall not in any event be less than five Business Days following the date of such Termination Notice, and (iii) one or more commercial banks (each, a “ Successor Bank ”), each such Successor Bank having a combined capital, surplus (or its equivalent) and undivided profits in an amount not less than U.S. $500,000,000 (or its equivalent in another currency), which Successor Bank or Successor Banks shall have agreed, in the aggregate, to succeed to the entire Commitment of such Terminated Bank on the Bank Termination Date.

(c) Unless the Borrowers shall have elected, as evidenced by their Termination Notice, to prepay all the Advances (including any participation in a Swingline Loan) made by a Terminated Bank outstanding as of the Bank Termination Date, any Advance (including any participation in a Swingline Loan) (each a “ TB Advance ”) made by such Terminated Bank having an Interest Period ending after the Bank Termination Date shall remain outstanding until the last day of such Interest Period (unless required to be paid earlier in accordance with the terms of this Agreement). On the last day of the then current Interest Period in respect of each TB Advance, the Successor Bank shall extend an Advance to the Applicable Borrower in a principal amount corresponding to such TB Advance, and having an Interest Period of the type specified in the Notice of Interest Period Election that would otherwise have applied to such TB Advance, and the proceeds of such Advance from the Successor Bank shall be used by the Applicable Borrower to repay such TB Advance to the Terminated Bank. The Successor Bank or Successor Banks specified by the Borrowers in a Termination Notice shall have agreed, prior to the Bank Termination Date, to succeed, in the aggregate, to the entire Commitment of such Terminated Bank on the Bank Termination Date which succession shall, with respect to the unused portion of such Terminated Bank’s Commitment as of such Bank Termination Date, become effective as of the Bank Termination Date and, with respect to the remaining portion of such Terminated Bank’s Commitment, become effective as and when such Terminated Bank’s Advances (including any participation in a Swingline Loan) are repaid.

(d) If the Borrowers shall have elected, as evidenced by their Termination Notice, to prepay all the Advances (including any participation in a Swingline Loan) made by a Terminated Bank outstanding as of the Bank Termination Date, the Successor Bank or Successor Banks shall in the aggregate extend to each Applicable Borrower, on the Bank Termination Date, Advances (including any participation in a Swingline Loan) (with interest at a rate to be agreed upon by the Applicable Borrower and each Successor Bank) corresponding in respective amounts to each Advance being prepaid as of such date, each of which Advances shall have an Interest Period beginning on the Bank Termination Date and ending on the last day of the Interest Period of the Advance being prepaid to which it corresponds.

(e) Each such termination pursuant to this Section 5.18 shall be effective on the Bank Termination Date proposed by the Borrowers in the related Termination Notice if (i) no Event of Default shall have occurred prior to such date and be continuing on such date, (ii) in the event the Borrowers shall have elected to prepay all Advances (including any participation in a Swingline Loan) made by such Terminated Bank outstanding as of such date, (A) each

 

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Applicable Borrower shall have prepaid the outstanding aggregate amount of all Advances made by the Terminated Bank, together with accrued interest and accrued fees to such date on the amount prepaid and all other amounts payable to such Bank as of such date and (B) the Successor Bank or Successor Banks shall have extended to the Applicable Borrowers Advances equal in aggregate amount to the Advances of the Terminated Bank being prepaid as required pursuant to Section 5.18(d) , and (iii) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that the Successor Bank or Successor Banks shall have agreed in the aggregate to succeed to the entire Commitment of the Terminated Bank in accordance with this Section 5.18 . On a Bank Termination Date, the applicable Successor Bank (or Successor Banks, as applicable) shall succeed to the L/C Interests of the Terminated Bank, and the Terminated Bank shall thereafter cease to have any L/C Interest or any participation in, or liability for any drawings made under, any Letter of Credit.

(f) Subject to subsection (e) above, on the Bank Termination Date, (i) each Successor Bank shall become a party to this Agreement as if such Successor Bank shall have been named on the signature pages hereof, and such Successor Bank shall have all the rights and obligations of a “Bank” hereunder and (ii) the Terminated Bank shall have no further Commitment under this Agreement (other than with respect to Advances, if any, made by such Bank which remain outstanding after such date) and shall no longer be a “Bank” under this Agreement for any purpose (other than with respect to Advances made by such Bank which remain outstanding after such date) except insofar as it shall be entitled to any payment or indemnification, or be obligated to make any indemnification, on account of any event which shall have occurred, or any right or liability which shall have arisen, on or prior to the date of repayment of such outstanding Advances (including any participation in a Swingline Loan). The termination of any Bank’s Commitment and the prepayment of such Bank’s Advances pursuant to this Section 5.18 shall not relieve or satisfy the obligations of any Borrower to make any such prepayments free and clear of all Indemnified Taxes, to reimburse such Bank for all Other Taxes and for all increased costs pursuant to Section 5.13 , or to comply with all other terms and conditions of this Agreement (including Section 11.04 ).

SECTION 5.19. Defaulting Banks . Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank then the following provisions shall apply for so long as such Bank is a Defaulting Bank:

(a) Fees shall cease to accrue on the unfunded Commitment of such Defaulting Bank pursuant to Section 5.04(a) . Each Defaulting Bank shall be entitled to receive Letter of Credit Fees under Section 5.04(b) for any period during which such Bank is a Defaulting Bank only to the extent allocable to its L/C Exposure of the stated amount of Letters of Credit for which it has provided cash collateral to the Administrative Agent.

(b) The Commitments and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.01 ) which requires Majority Banks consent.

(c) All or any part of any Swingline Exposure or L/C Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Applicable

 

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Percentages but only to the extent such reallocation does not cause any non-Defaulting Bank to exceed its Commitment; provided that if such reallocation cannot, or can only partially, be effected, one or more Borrowers shall, without prejudice to any right or remedy available to any Borrower hereunder or under law, within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize for the benefit of each Issuing Bank such Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation described in this clause (c) ) in accordance with the procedures set forth in Section 9.02 for so long as such L/C Exposure is outstanding. Notwithstanding the foregoing, reallocation of Swingline Exposure or L/C Exposure in accordance with the terms of this Agreement shall not constitute a waiver or release of claims against any such Defaulting Bank.

(d) If a Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure to such Borrower pursuant to clause (c)  above, such Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is so cash collateralized.

(e) If the L/C Exposure of the non-Defaulting Banks are reallocated pursuant to clause (c)  above, then the fees payable to the Banks pursuant to Sections 5.04(a) and (b)  shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages.

(f) If all or any portion of such Defaulting Bank’s L/C Exposure is neither cash collateralized nor reallocated pursuant to clause (c)  above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Bank hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Exposure) and Letter of Credit Fees payable under Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure shall be payable, on a pro rata basis, to the Issuing Banks until each such L/C Exposure is cash collateralized and/or reallocated.

(g) So long as such Bank is a Defaulting Bank, no Swingline Banks shall be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless, in each case, the applicable Swingline Bank or Issuing Bank is satisfied that the related exposure will be 100% covered by the non-Defaulting Banks, cash collateral provided pursuant to clause fifth of Section 5.19(h) below and/or cash collateral provided by any Borrower in accordance with Section 5.19(c) .

(h) Any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 11.05 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Swingline Bank or Issuing Bank hereunder; third , to cash collateralize the Issuing Banks’ exposure with respect to such Defaulting Bank; fourth as the Borrowers may request (so long as no Event of Default or

 

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Unmatured Event of Default exists), to the funding of any Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement; fifth , if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Issuing Banks’ future exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth , to the payment of any amounts owing to the Banks, the Swingline Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Swingline Banks or the Issuing Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; seventh , so long as no Event of Default or Unmatured Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth , to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances or Reimbursement Obligations in respect of which such Defaulting Bank has not fully funded its proportionate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Advances and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Banks pro rata in accordance with the Commitments without giving effect to Section 5.19(c) . Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.

(i) In the event that the Administrative Agent, the Borrowers, each Swingline Bank and each Issuing Bank agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Aggregate Revolving Credit Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Advances of the other Banks (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Advances in accordance with its Applicable Percentage.

(j) The Borrowers may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Banks thereof), and in such event the provisions of Section 5.19(c) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing Bank, any Swingline Bank or any Bank may have against such Defaulting Bank.

 

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SECTION 5.20. Additional Borrowers . The Guarantor may, at any time or from time to time, designate one or more Wholly-Owned Subsidiaries of the Guarantor as an additional “Borrower” hereunder by furnishing to the Administrative Agent a Designation Letter in duplicate, duly completed and executed by the Guarantor and such Wholly-Owned Subsidiary, together with such legal opinions, corporate certificates and other documents and KYC information relating to the proposed additional Borrower as the Administrative Agent shall reasonably request. Upon any such designation of a Wholly-Owned Subsidiary of the Guarantor, the delivery of the documents described in the preceding sentence and the approval of such designation by the Administrative Agent and each Bank, such Subsidiary shall be a “Borrower” hereunder (with all the related rights and obligations) and shall be entitled to request and receive Advances, Letters of Credit and Swingline Loans on and subject to the terms and conditions of, and to the extent provided in, this Agreement.

SECTION 5.21. Resignation of a Borrower. Any Borrower may cease to be a “Borrower” by furnishing to the Administrative Agent a notice stating that such Borrower resigns as a Borrower hereunder; provided that (a) no Borrower may resign at any time that such Borrower has any outstanding Advances or L/C Obligations; (b) concurrently with any such resignation, the applicable Borrower shall pay (or one of more other Borrowers shall agree to assume the obligation to pay) all accrued and unpaid Facility Fees, Letter of Credit Fees and other amounts payable by such Borrower hereunder; (c) notwithstanding any such resignation, no Borrower that ceases to be a party hereto shall be released from its obligations under any provision hereof that is stated to survive termination hereof; and (d) there shall always be at least one Borrower hereunder.

ARTICLE VI

CONDITIONS PRECEDENT

SECTION 6.01. Conditions Precedent to Effectiveness of Agreement . The effectiveness of this Agreement and the obligation of each Bank to make its initial Advance or for an Issuing Bank to issue the initial Letter of Credit hereunder (whichever shall first be requested by a Borrower) is subject to the condition precedent that the Administrative Agent shall have received all of the following:

(a) The Guaranty of the Guarantor, duly executed by the Guarantor in favor of the Administrative Agent and the Banks.

(b) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Loan Documents to which it will be party, and of all documents evidencing other necessary organizational action with respect to such Loan Documents.

(c) A certificate of the Secretary or an Assistant Secretary (or other appropriate officer, director, manager or other representative) of each Loan Party, in each case certifying the names and true signatures of the officers or other representatives of such Loan Party authorized to sign the Loan Documents to which it will be party and the other documents or certificates to be delivered pursuant to this Agreement. Baxter Healthcare SA shall deliver a copy of an English translation of an excerpt of the Commercial Register for the Canton of Zurich-Main Register with respect to Baxter Healthcare SA.

 

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(d) A certificate, signed by the chief financial officer of the Guarantor or another officer of Guarantor acceptable to Administrative Agent, stating that as of the date hereof (i) all representations and warranties in this Agreement and in the Guaranty are correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) as of such earlier date, (ii) no Event of Default or Unmatured Event of Default has occurred and is continuing, (iii) there are no unreimbursed drawings under any Existing Letter of Credit and (iv) the condition set forth in subparagraph (g) below has been satisfied.

(e) A favorable opinion of (i) the General Counsel or Associate General Counsel of the Guarantor, (ii) Swiss counsel to Baxter Healthcare SA and (iii) Belgian counsel to Baxter World Trade SPRL, each opinion in form and substance reasonably satisfactory to the Administrative Agent.

(f) The Banks, the Administrative Agent and the Mandated Lead Arrangers shall have received all fees required to be paid, and all expenses for which invoices have been presented at least one Business Day prior to the Closing Date, on the Closing Date.

(g) The Spin Off shall have been, or substantially concurrently will be, consummated on terms substantially consistent with the Form 10

(h) The Guarantor shall have paid (or shall concurrently pay) all amounts owing under the Existing US Facility (other than contingent reimbursement obligations with respect to Existing Letters of Credit).

(i) All commitments under the Existing Euro Facility shall have been (or shall concurrently be) terminated and all amounts owing thereunder (other than contingent reimbursement obligations with respect to letters of credit deemed reissued under a successor credit agreement) shall have been (or shall concurrently be) paid in full.

(j) The Banks shall have received such other documents and other instruments as are customary for transactions of this type or as they may reasonably request.

Notwithstanding anything above to the contrary, it shall not be a condition to the effectiveness of this Agreement or the obligation of each Bank to make its initial Advance to Baxter Healthcare SA or for an Issuing Bank to issue the initial Letter of Credit hereunder for the account of Baxter Healthcare SA that Baxter World Trade SPRL shall have made the deliveries required of or relating to it by Sections 6.01(b) , (c)  or (e) ; provided that it shall be a condition of the initial Credit Extension to Baxter World Trade SPRL that such deliveries have been made as soon as practicable, but in any event within 30 days after the date hereof and prior to the initial Credit Extension to Baxter World Trade SPRL.

 

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SECTION 6.02. Conditions Precedent to Each Credit Extension . The obligation of each Bank to make any Credit Extension on the occasion thereof (including the initial Credit Extension) shall be subject to the additional conditions precedent that on the date of such Borrowing (a) immediately before and after giving effect to such Credit Extension (and, in the case of a Borrowing), and to the application of proceeds therefrom, the following statements shall be true and (x) each of the giving of the applicable Notice of Borrowing and the acceptance by the Applicable Borrower of the proceeds of such Borrowing and (y) the submission of a request for issuance of a Letter of Credit shall, in each case, be deemed to constitute a representation and warranty by the Applicable Borrower that on the date of such Credit Extension (and, in the case of a Borrowing or such issuance, immediately before and after giving effect thereto and to the application of the proceeds therefrom, such statements are true):

(i) The representations and warranties contained in Section 7.01 (other than subsection (h) thereof) and in Section 11 of the Guaranty (other than subsections (e)(i), (f) and (g) thereof) are correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) on and as of the date of such Credit Extension as though made on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they shall be true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) as of such earlier date);

(ii) No event has occurred and is continuing, or would result from such Credit Extension (and, in the case of a Borrowing, or from the application of the proceeds therefrom), which constitutes an Event of Default or an Unmatured Event of Default; and

(iii) The Aggregate Revolving Credit Exposure at such time does not exceed the Aggregate Commitments at such time, and (b) the Administrative Agent shall have received such other documents as any Bank through the Administrative Agent may reasonably request related to clauses (a)(i) or (a)(ii) above.

ARTICLE VII

REPRESENTATIONS AND WARRANTIES

SECTION 7.01. Representations and Warranties of the Borrowers . Each Borrower represents and warrants as follows:

(a) Corporate Existence and Standing . Such Borrower is duly organized, validly existing and, where such concept applies, in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which the failure so to qualify would have a material adverse effect on the financial condition or operations of such Borrower.

 

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(b) Authorization; No Violation . The execution, delivery and performance by such Borrower of this Agreement and the Notes are within such Borrower’s organizational powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s organizational documents or (ii) any law or any contractual restriction binding on or affecting such Borrower.

(c) Governmental Consents . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by such Borrower of this Agreement or any Note.

(d) Validity . This Agreement is, and any Notes when delivered by such Borrower will be, a legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance its respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) Litigation . There is no pending or, to the knowledge of such Borrower, threatened action or proceeding affecting such Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which purports to affect the legality, validity or enforceability of this Agreement or any Note to be delivered by it.

(f) Investment Company Act . Such Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

(g) Regulation U . Neither such Borrower nor any of its Subsidiaries is engaged as a substantial part of its activities in the business of purchasing or carrying Margin Stock. The value of the Margin Stock owned directly or indirectly by such Borrower or any Subsidiary which is subject to any arrangement (as such term is used in Section 221.2(g) of Regulation U issued by the Board of Governors of the Federal Reserve System) hereunder is less than an amount equal to 25% of the value of all assets of such Borrower and/or such Subsidiary subject to such arrangement.

(h) Environmental Matters . The operations of such Borrower comply in all material respects with all Environmental Laws, the noncompliance with which would materially adversely affect the financial condition or operations of such Borrower.

SECTION 7.02. Representations and Warranties of the Banks . Each Bank represents and warrants that (a) such Bank is a Qualifying Bank and (b) such Bank shall not assign, participate or otherwise transfer any part of its Commitment or its Advances to any entity that is not a Qualifying Bank.

 

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ARTICLE VIII

COVENANTS

SECTION 8.01. Affirmative Covenants of the Borrowers . So long as any Advance shall remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, each Borrower will:

(a) Payment of Taxes, Etc. Pay and discharge, before the same shall become delinquent, (i) all Taxes, assessments and governmental charges or levies imposed upon it or upon its income, profit or property, and (ii) all lawful claims which, if unpaid, might by law become a lien upon its property; provided , however , that such Borrower shall not be required to pay or discharge any such tax, assessment, charge or claim (i) which is being contested in good faith and by proper proceedings and with respect to which such Borrower shall have established appropriate reserves in accordance with Applicable Accounting Principles or (ii) if the non-payment thereof is not materially adverse to the financial condition or operations of such Borrower.

(b) Maintenance of Insurance . Maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by (or, as applicable, self-insure in a manner and to an extent not inconsistent with conventions observed by) companies engaged in similar businesses and owning similar properties in the same general areas in which such Borrower operates.

(c) Preservation of Existence, Etc. Preserve and maintain its organizational existence, rights and franchises, except as otherwise permitted by Section 8.02 ; provided , however , that such Borrower shall not be required to preserve any right or franchise if the Board of Directors of such Borrower shall determine that the preservation thereof is no longer desirable in the conduct of business of such Borrower and that the loss thereof is not materially adverse to the financial condition or operations of such Borrower.

(d) Compliance with Laws, Etc. Comply with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws), noncompliance with which would materially adversely affect the financial condition or operations of such Borrower.

(e) Keeping of Books . Keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Borrower in accordance with Applicable Accounting Principles.

(f) Reporting Requirements . Furnish to the Administrative Agent, as soon as possible, and in any event within five Business Days after any Borrower shall become aware of the occurrence of each Event of Default or Unmatured Event of Default, which Event of Default or event is continuing on the date of such statement, a statement of the chief financial officer of such Borrower or another officer of such Borrower acceptable to Administrative Agent setting forth details of such Event of Default or event and the action which such Borrower proposes to take with respect thereto; provided , however , that such Borrower shall not be obligated to take the foregoing actions to the extent that the Guarantor has already complied with Section 12(a)(v) of the Guaranty with respect to such occurrence or event.

(g) Use of Proceeds . Use the proceeds of Borrowings made under or Letters of Credit issued in accordance with this Agreement for general corporate purposes not in violation of any applicable law or regulation (including Regulation U and X of the Board of Governors of the Federal Reserve System (the “ Margin Regulations ”)). With respect to any Borrowing the proceeds of which shall be used to purchase or carry Margin Stock, the Applicable Borrower shall include in the Notice of Borrowing for such Borrowing such information as shall enable the Banks and such Borrower to comply with the Margin Regulations.

 

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SECTION 8.02. Negative Covenants of the Borrowers . So long as any Advance shall remain unpaid, any L/C Obligations shall remain outstanding or any Bank shall have any Commitment, each Borrower agrees that it will not merge or consolidate with or into, or Transfer Assets to, any Person, except that such Borrower may (A) merge or consolidate with any Person so long as (x) immediately after giving effect to such transaction, no event shall have occurred and be continuing which constitutes an Event of Default or Unmatured Event of Default and (y) in the case of any merger or consolidation to which such Borrower shall be a party, the survivor of such merger or consolidation shall be a Borrower.

For purposes of this Section 8.02 : “ Transfer Assets ” means, when referring to a Borrower, the conveyance, transfer, lease or other disposition (whether in one transaction or in a series of transactions) of all or substantially all of the assets of such Borrower or of such Borrower and its Subsidiaries considered as a whole.

ARTICLE IX

EVENTS OF DEFAULT

SECTION 9.01. Events of Default . If any of the following events (each an “ Event of Default ” and collectively, “ Events of Default ”) shall occur and be continuing:

(a) Any Borrower shall fail to (i) pay any installment of interest on any Advance, any Facility Fee payable under Section 5.04(a) or any Letter of Credit Fee payable under Section 4.07 or Section 5.04(b) , in each case when due, and such default continues for five (5) days, or (ii) pay any amount of principal of any Advance or any Reimbursement Obligation when due; or

(b) Any representation or warranty made or deemed made by any Borrower (or any of its officers) or the Guarantor (or any of its officers) in connection with any of the Loan Documents or any Advance or Letter of Credit shall prove to have been incorrect in any material respect (or, if any such representation or warranty is qualified by materiality or material adverse effect, in any respect) when made or deemed made; or

(c) The Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 12(h) or 12(j) of the Guaranty on its part to be performed or observed and such failure shall remain unremedied on the earlier to occur of (i) or (ii): (i) the

 

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date 30 days after the Guarantor shall have become aware of such failure or (ii) the date that financial statements of the Guarantor shall be available from which it may be ascertained that such failure to perform or observe such term, covenant or agreement shall have occurred. For purposes of clause (ii) above, the date that any financial statements shall be deemed available shall be the date on which the Guarantor shall file (or, if earlier, the date the Guarantor shall have been required to file) such financial statements with the SEC as part of any report required to be filed pursuant to the Exchange Act; or

(d) Any Borrower or the Guarantor, as applicable, shall (i) fail to perform or observe, or shall breach, any other term, covenant or agreement contained in any of the Loan Documents on its part to be performed or observed (other than those failures or breaches referred to in subsections (a) (b) (c) , (d)(ii) or (d)(iii) of this Section 9.01 ) and any such failure or breach shall remain unremedied for 30 days after written notice thereof has been given to the Borrowers by the Administrative Agent at the request of any Bank; (ii) fail to perform or observe Section 8.02 or Section 12(m) or 12(n) of the Guaranty or request any Advance or use the proceeds thereof in a manner resulting in a breach of Section 12(k) of the Guaranty; or (iii) fail to perform or observe Section 8.01(g) and such failure shall remain unremedied for 15 days after the occurrence thereof; or

(e) The Guarantor or any Material Subsidiary shall fail to pay any amount of principal of, interest on or premium with respect to, any Debt (other than that evidenced by this Agreement) of the Guarantor or such Material Subsidiary when due (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) which Debt is outstanding under one or more instruments or agreements in an aggregate principal amount not less than $150,000,000 and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist after the applicable grace period specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a scheduled prepayment), prior to the stated maturity thereof; or

(f) The Guarantor or any Material Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Guarantor or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debt under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property; or the Guarantor or any such Material Subsidiary shall take corporate action to authorize any of the actions set forth above in this subsection (f); provided that, in the case of any such proceeding filed or commenced against the Guarantor or any Material Subsidiary, such event shall not constitute an “Event of Default” hereunder unless either (i) the same shall have remained undismissed or unstayed for a period of 60 days, (ii) an order for relief shall have been entered against the Guarantor or such Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect or (iii) the Guarantor or such Material Subsidiary shall have taken corporate action consenting to, approving or acquiescing in the commencement or maintenance of such proceeding; or

 

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(g) Any judgment or order for the payment of money shall be rendered against the Guarantor or any Material Subsidiary and (i) either (A) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (B) there shall be any period of 30 consecutive days, in the case of a judgment or order rendered or entered by a court during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect, and (ii) the amount of such judgment or order, when aggregated with the amount of all other such judgments and orders described in this subsection (g), shall exceed $150,000,000; provided that the rendering of any such judgment or order shall not constitute an Unmatured Event of Default; or

(h) Either (i) the PBGC shall institute proceedings under Section 4042 of ERISA to terminate any Plan and such Plan shall have an Unfunded Liability in an amount in excess of $150,000,000 at such time or (ii) withdrawal liability shall be assessed against the Guarantor or any Material Subsidiary in connection with any Multiemployer Plan (whether under Section 4203 or Section 4205 of ERISA) and such withdrawal liability shall be an amount in excess of $150,000,000; or

(i) The Guaranty shall cease to be in full force and effect in accordance with the terms thereof or shall cease to give the Administrative Agent the rights, powers and privileges purported to be created thereby; or the Guarantor shall assert the invalidity of the Guaranty or shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Guaranty and such default shall continue beyond any grace period specifically applicable thereto pursuant to the terms of the Guaranty; or

(j) A Change of Control shall occur;

then, in any such event but subject to the next sentence, the Administrative Agent shall at the request, or may with the consent, of the Majority Banks, by notice to the Borrowers and the Guarantor, (i) declare the obligation of each Bank to make Advances and the obligation of each Issuing Bank to issue Letters of Credit hereunder to be terminated, whereupon the same shall forthwith terminate, (ii) declare the entire unpaid principal amount of the Advances, all interest accrued and unpaid thereon and all other amounts payable under this Agreement (including Reimbursement Obligations) to be forthwith due and payable, whereupon the Advances, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers and (iii) demand delivery of, and promptly following such demand each applicable Borrower shall deliver and pledge to the Administrative Agent (or another Bank selected by such Borrower) for the benefit of the Banks, cash or other collateral of a type satisfactory to the Majority Banks and having a value, as determined by the Administrative Agent, equal to the aggregate undrawn face amount of the Letters of Credit issued for the account of such Borrower and then outstanding and all fees and other amounts then due from such Borrower hereunder. In the event of the occurrence of an Event of Default under Section 9.01(f) , (A) the obligation of each Bank to make Advances and the obligation of each Issuing

 

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Bank to issue Letters of Credit hereunder shall automatically be terminated and (B) the Advances, all such interest and all such amounts (including Reimbursement Obligations) shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers.

SECTION 9.02. Cash Collateral . Any cash collateral delivered pursuant to Section 9.01 in respect of the outstanding Letters of Credit shall be held by the Administrative Agent or the applicable Bank in a separate interest-bearing account appropriately designated as a cash collateral account in relation to this Agreement and the Letters of Credit and retained by and under the control of the Administrative Agent or the applicable Bank for the benefit of all of the Banks and the Issuing Banks as collateral security for the applicable Borrower’s obligations in respect of this Agreement and each Letter of Credit issued for the account of such Borrower. Amounts held in such account shall be applied on the direction of the Administrative Agent to reimburse the Issuing Banks for drawings or payments under or pursuant to Letters of Credit issued for the account of such Borrower, or if no such reimbursement is required, to payment of such of the other obligations due and owing by such Borrower hereunder as the Administrative Agent shall determine. If no Event of Default shall be continuing, amounts remaining in any cash collateral account established pursuant to this Section 9.02 which are not to be applied to reimburse an Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in respect of a Letter of Credit or to payment of such of the other obligations due and owing hereunder shall be promptly returned to the Applicable Borrower upon the Applicable Borrower’s request therefor.

ARTICLE X

THE ADMINISTRATIVE AGENT

SECTION 10.01. Authorization and Action . Each Bank hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Banks and such instructions shall be binding upon all Banks and all holders of Notes. The Administrative Agent shall not be required to take any action which exposes it to personal liability or which is contrary to this Agreement or applicable law and shall not be subject to any fiduciary duties. The Administrative Agent shall be permitted from time to time to designate one or more of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Advances and Borrowings denominated in Agreed Currencies other than Euro. The provisions of this Article X shall apply to any such Affiliate mutatis mutandis.

SECTION 10.02. Duties and Obligations . Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, (i) the Administrative Agent may treat the payee of any Note as the holder thereof unless and until the

 

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Administrative Agent receives written notice of the assignment thereof signed by such payee and the Administrative Agent receives the written agreement of the assignee that such assignee is bound hereby as it would have been if it had been an original Bank party hereto, in each case in form satisfactory to the Administrative Agent, (ii) the Administrative Agent may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, and (iii) the Administrative Agent shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties or by acting upon any representation or warranty of any Borrower made or deemed to be made hereunder. Further, the Administrative Agent (A) makes no warranty or representation to any Bank and shall not be responsible to any Bank for the accuracy or completeness of any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (B) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrowers or to inspect the property (including the books and records) of any Borrower, and (C) shall not be responsible to any Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto.

SECTION 10.03. Administrative Agent and Affiliates . With respect to its Commitment, the Advances made by it and the Notes issued to it, the Administrative Agent, in its separate capacity as a Bank, shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Administrative Agent; and the term “Bank” or “Banks” shall, unless otherwise expressly indicated, include the Administrative Agent in its separate capacity as a Bank. The Administrative Agent, in its separate capacity as a Bank, and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, participate in Letters of Credit issued to and generally engage in any kind of business with, any Borrower, any Subsidiary and any Person which may do business with or own securities of any Borrower or any Subsidiary, all as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Banks.

SECTION 10.04. Bank Credit Decision . Each Bank agrees that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, condition, affairs, status and nature of the Borrowers. Accordingly, each Bank confirms to the Administrative Agent that such Bank has not relied, and will not hereafter rely, on the Administrative Agent, or any other Bank, (i) to check or inquire on its behalf into the adequacy, accuracy or completeness of any information provided by any Borrower under or in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter distributed to such Bank by the Administrative Agent), (ii) to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of any Borrower or (iii) in entering into this Agreement or in making its own credit decisions with respect to the taking or not taking of any action under this Agreement.

SECTION 10.05. Indemnification . The Banks agree to indemnify the Administrative Agent (to the extent not reimbursed by the Applicable Borrower) ratably

 

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according to the respective principal amounts of the Commitments then held by each of them (or if the Commitments have at the time been terminated, ratably according to the respective Euro Amounts of their Advances then outstanding), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement, provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct. Without limiting the generality of the foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification or amendment of this Agreement or preservation of any rights of the Administrative Agent or the Banks under, or the enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrowers.

SECTION 10.06. Sub-Agents . The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and other provisions of this Article X shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent.

SECTION 10.07. Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Banks and the Borrowers. Upon any such resignation of the Administrative Agent, the Majority Banks shall have the right to appoint a successor Administrative Agent to assume the position as Administrative Agent of the retiring Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be either a Bank hereunder or a commercial bank organized or licensed under the laws of the United States or of any state thereof and having a combined capital and surplus of at least $500,000,000 (or its equivalent in another currency). The Borrowers shall have the right to approve any successor Administrative Agent, which approval shall not be unreasonably withheld (in all such cases the Borrowers shall be entitled to take into account their past and then existing commercial banking relationships, among other things); provided that, if an Event of Default shall have occurred, such right of the Borrowers to approve the successor Administrative Agent shall be suspended during the continuance of such Event of Default. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring

 

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Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

SECTION 10.08. Syndication Agents and Mandated Lead Arrangers . None of the Banks identified on the cover page or signature pages of this Agreement as a “Syndication Agent” or a “Mandated Lead Arranger” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Banks as such. Each Bank acknowledges that it has not relied, and will not rely, on any of the Banks identified as Syndication Agents or as Mandated Lead Arrangers in deciding to enter into this Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.

ARTICLE XI

MISCELLANEOUS

SECTION 11.01. Amendments, Etc .

(a) Subject to the further terms of this Section 11.01 , no amendment or waiver of any provision of this Agreement, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following: (a) waive any of the conditions specified in Section 6.01 , (b) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances and L/C Obligations, or the number of Banks, which shall be required for the Banks or any of them to take any action hereunder, or amend the definition herein of “Majority Banks,” or (c) amend this Section 11.01 . No amendment, waiver or consent shall: (i) change the Commitments of any Bank or subject any Bank to any additional obligations without the written consent of such Bank, (ii) reduce the principal of, or interest on, the Advances or the Reimbursement Obligations or any Facility Fees, Letter of Credit Fees or other amount payable hereunder without the written consent of each Bank directly affected thereby, provided , however , that only the consent of the Majority Banks shall be necessary to amend Section 5.09 or to waive any obligation of any Borrower to pay interest at the rate specified in such Section 5.09 or (iii) change any date fixed for any payment in respect of principal of, or interest on, the Advances or the Reimbursement Obligations or any Facility Fees, Letter of Credit Fees or other amount payable hereunder without the written consent of each Bank directly affected thereby. No amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Banks required hereinabove to take such action, affect the rights or duties of the Administrative Agent under this Agreement. No amendment, waiver or consent shall, without the consent of each Swingline Bank or Issuing Bank affected thereby, amend, modify or waive any provision of Article III, Article IV or alter any rights or obligations with respect to any Swingline Loan or Letter of Credit issued by such Swingline Bank or Issuing Bank. Notwithstanding the foregoing, the actions contemplated by Section 2.05 shall not be subject to the consent of the Banks, except as otherwise expressly provided in such Section 2.05 .

(b) Notwithstanding the foregoing, no amendment or amendment and restatement of this Agreement which is in all other respects approved by the Banks in accordance with this Section 11.01 shall require the consent or approval of any Bank (i) which immediately after giving effect to such amendment or amendment and restatement, shall have no Commitment or other obligation to maintain or extend credit under this Agreement (as so amended or amended and restated), including any obligation in respect of any drawing under or participation in any Letter of Credit and (ii) which, substantially contemporaneously with the effectiveness of such amendment or amendment and restatement, shall have been paid in full all amounts owing to it hereunder (including principal, interest and fees). From and after the effectiveness of any such amendment or amendment and restatement, any such Bank shall be deemed to no longer be a “Bank” hereunder or a party hereto; provided that any such Bank shall retain the benefit of indemnification and other provisions hereof which, by the terms hereof would survive a termination of this Agreement.

 

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SECTION 11.02. Notices, Etc .

(a) All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows: if to a Borrower, at the address set forth for such Borrower on the signature pages hereof; if from a Borrower to the Administrative Agent or any Bank, to the Administrative Agent at the address set forth for the Administrative Agent on the signature pages hereof; if from the Administrative Agent to any Bank, at the address of such Bank’s Lending Office or, in the case of a notice or communication relating to information delivered under Section 8.01(g) , by posting on an Internet website established by the Administrative Agent with Intralinks, Inc. or other similarly available electronic media; or, in any case, at such other address as shall be designated by such party in a written notice to the other parties hereto (except in the case of a Borrower, as to which a change of address may be made by notice to the Administrative Agent on behalf of the Banks and except in the case of any Bank, as to which a change of address may be made by notice to the Administrative Agent). Subject to the next sentence, notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and communications (i) pursuant to Articles II and X shall not be effective until they are received by the addressee during its normal business hours; and (ii) sent by facsimile to the Applicable Borrower shall not be effective until the sender has received confirmation of receipt (in writing or by telephone) from the intended recipient. The Administrative Agent agrees to deliver promptly to each Bank copies of each report, document, certificate, notice and request, or summaries thereof, which any Loan Party is required to, and does in fact, deliver to the Administrative Agent in accordance with the terms of this Agreement, including copies of any notices delivered by the Borrower pursuant to Section 8.01(g) .

(b) Notices and other communications to the Banks and the Issuing Banks hereunder may be delivered or furnished by electronic communication (including e mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Bank or any

 

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Issuing Bank pursuant to Article II, III or IV if such Bank or such Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article II, III or IV by electronic communication. The Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

(c) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i)  of notification that such notice or communication is available and identifying the website address therefor.

SECTION 11.03. No Waiver; Cumulative Remedies . No failure on the part of the Administrative Agent or any Bank to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver hereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 11.04. Costs and Expenses; Indemnification .

(a) Each Borrower agrees to reimburse on demand the Administrative Agent, the Syndication Agents and the Mandated Lead Arrangers for all reasonable and documented out-of-pocket costs and expenses (including, subject to such limits as may be agreed to in writing by the applicable parties from time to time, the reasonable and documented fees, time charges and expenses of one law firm for the Administrative Agent, the Syndication Agents and the Mandated Lead Arrangers, and, with the prior written consent of the Borrowers (such consent not to be unreasonably withheld), any special or local counsel deemed appropriate by such law firm) incurred by the Administrative Agent, the Syndication Agents and the Mandated Lead Arrangers in connection with the preparation, negotiation, distribution through e-mail or secured website, execution, syndication and enforcement of this Agreement, the Notes, if any, and the other documents to be delivered hereunder or contemplated hereby; provided , however , that such out-of-pocket costs and expenses of the Administrative Agent, the Syndication Agents and the Mandated Lead Arrangers through the date of execution of this Agreement shall only be payable as set forth in a separate fee letter (if any) executed and delivered prior to the effective date of this Agreement by the Administrative Agent, the Syndication Agents, the Mandated Lead Arrangers and the Borrowers. Each Borrower further agrees to pay on demand all direct out-of-pocket losses, and reasonable out-of-pocket costs and expenses, if any (including reasonable fees and out-of-pocket expenses of outside counsel), of the Administrative Agent, any Issuing Bank, any Swingline Bank and any Bank in connection with the enforcement (whether by legal proceedings, negotiation or otherwise) of this Agreement, the Notes, if any, and the other

 

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documents delivered hereunder; provided that the Borrowers shall not be obligated to pay the fees, time charges and expenses of any counsel other than (i) a single counsel for the Administrative Agent, (ii) a single counsel for the Banks, (iii) any local or special counsel reasonably determined to be necessary by the counsel referred to in clause (i) or (ii) above, and (iv) any additional counsel reasonably determined to be necessary by any counsel for the Banks pursuant to clause (ii) or (iii) above due to an actual or potential conflict of interest. The obligation of each Borrower to reimburse or pay amounts or provide indemnities pursuant to this Section 11.04(a) and Section 11.04(c) shall be deemed satisfied to the extent that another Borrower has reimbursed or paid such amount or provided such indemnities.

(b) If (i) due to payments made by any Borrower due to acceleration of the maturity of the Advances pursuant to Section 9.01 or due to any other reason, any Bank receives payments of principal of any Eurocurrency Rate Advance made to such Borrower other than on the last day of the Interest Period for such Advance or (ii) any the Borrower fails to borrow, convert, continue or prepay any Advance on the date specified in any notice delivered by it pursuant hereto, such Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional direct out-of-pocket losses, costs or expenses which it may reasonably incur as a result of such payment or failure, including any such loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund or maintain such Advance; provided that the amount of such loss, cost or expense shall not exceed the amount determined by such Bank to be the excess, if any, of (i) the amount of interest that would have accrued on a principal amount equal to such Advance, at the Eurocurrency Rate applicable to such Advance, for the period from the date of such payment to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow or continue, for the period that would have been the Interest Period for such Advance) (in either such case, the “Relevant Period”), over (ii) the amount of interest that would accrue on such principal amount for the Relevant Period at the interest rate that such Bank would bid, were it to bid at the commencement of the Relevant Period, for deposits in Dollars in a comparable amount and for the Relevant Period from other banks in the London interbank market. For purposes of calculating amounts payable by any Borrower to a Bank under this Section 11.04(b) , each Bank shall be deemed to have funded each Eurocurrency Rate Advance made by it at the Eurocurrency Rate for such Advance by a matching deposit or other borrowing in the London interbank market for such currency for a comparable amount and for a comparable period.

(c) Subject to the next sentence, each Borrower agrees to indemnify and hold harmless the Administrative Agent, each Issuing Bank, each Swingline Bank, each Bank, their respective Affiliates and each of the foregoing’s respective directors, officers and employees from and against any and all claims, damages, liabilities and out-of-pocket expenses (including reasonable fees and out-of-pocket expenses of outside counsel) which may be incurred by or asserted against the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank or any such director, officer or employee in connection with or arising out of any investigation, litigation, or proceeding (whether or not any such claim, litigation, investigation or proceeding is brought by a Borrower, its equity holders, its Affiliates, its creditors or any other Person) (i) related to this Agreement, any transaction or proposed transaction (whether or not consummated) contemplated hereby or in which any proceeds of any Borrowing are applied or

 

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proposed to be applied, directly or indirectly, by any Borrower, whether or not the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank or any such director, officer or employee is a party to such transactions or (ii) related to any Borrower’s entering into this Agreement, or to any actions or omissions of any Borrower, any of its Subsidiaries or Affiliates or any of its or their respective officers, directors or employees in connection therewith, and in each case regardless of whether the indemnified Person is party thereto. The Borrowers shall not be required to indemnify any such indemnified Person from or against any portion of such claims, damages, liabilities or expenses (a) arising out of the gross negligence or willful misconduct of such indemnified Person as determined in a final judgment by a court of competent jurisdiction or (b) that result from the violation by the Administrative Agent, such Issuing Bank, such Swingline Bank or such Bank of any law or judicial order.

(d) To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby, any Advance or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve any Borrower of any obligation it may have to indemnify a Person against special, indirect, consequential or punitive damages asserted against such Person by a third party.

SECTION 11.05. Right of Set-Off . Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 9.01 to authorize the Administrative Agent to declare the Advances due and payable pursuant to the provisions of Section 9.01 , each Bank (and each of its Affiliates) is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank (or any of its Affiliates) to or for the credit or the account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and any Notes issued by such Borrower held by such Bank, irrespective of whether or not such Bank shall have made any demand under this Agreement and any Notes and of whether or not such obligations may be matured. Each Bank agrees promptly to notify the Applicable Borrower after any such set-off and application made by such Bank, but the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Bank under this Section are in addition to other rights and remedies (including other rights of set-off) which such Bank may have.

SECTION 11.06. Binding Effect; Assignment . (a) This Agreement shall become effective when it shall have been executed by the Borrowers and the Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent and each Bank and their respective successors and assigns, except that no Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Banks.

 

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(b) Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to it hereunder to one or more banks or other entities (excluding natural persons and Persons which are not Qualifying Banks); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrowers (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further provided that each Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than €5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrowers); and (iii) any participation shall be in compliance with Section 11.06(f) . Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

(c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “ Assignment and Acceptance ”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining

 

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portion of an assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 5.13 , 5.15 and 11.04 for any events or circumstances occurring or existing before the effective date of assignment).

(d) By executing and delivering an Assignment and Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 11(f) of the Guaranty (and any later statements delivered pursuant to Section 12(a) of the Guaranty) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Bank or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Bank.

(e) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of (and stated interest on) the Advances owing to, each Bank from time to time (the “ Register ”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.

(f) Any Bank may, without the consent of the Borrowers, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrowers, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a Person which is not a Qualifying Bank, a natural Person, a Defaulting Bank or any Borrower or any Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) participations in all or a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Bank’s participations in Swingline Loans)

 

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owing to it); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. For the avoidance of doubt, each Bank shall be responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrowers and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the Bank from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Bank that sells participation agrees, at the request and expense of any Borrower, to use reasonable efforts to cooperate with such Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the Board of Governors of the Federal Reserve System, or any other Governmental Authority, as security for financial accommodations or privileges being provided or extended to such Bank by such Governmental Authority.

 

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SECTION 11.07. Confidentiality . The Administrative Agent, each Bank and each Issuing Bank agree to hold any Information (as defined below) which it may receive from any Loan Party pursuant to the Loan Documents in confidence, except for disclosure (i) to its Affiliates, legal counsel, accountants, and other professional advisors, and then solely on a need-to-know basis, (ii) in response to any request or order therefor issued by any Governmental Authority, (iii) as required by law, regulation, or judicial process, (iv) within any legal proceeding to enforce any of its rights or remedies hereunder; provided that an Event of Default shall have occurred hereunder and the requisite Banks shall have elected under Section 9.01 to enforce such rights or remedies against the Borrowers, (v) to any permitted assignee or participant under Section 11.06 , (vi) to any agents and advisors of a Bank solely in connection with the administration of this Agreement and the Advances and L/C Obligations hereunder, (vii) of Information which has already become publicly available at the time of such disclosure or (viii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and its obligations. In the case of disclosure pursuant to clause (ii)  or (iii)  above, the disclosing party agrees, to the extent practicable and permitted by applicable law, regulation or judicial process, to promptly notify the Loan Parties prior to such disclosure and to request confidential treatment if a Loan Party so requests. “ Information ” means all information received from any Loan Party relating to any Loan Party, any Subsidiary of a Loan Party or the business of any of the foregoing, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Bank on a non-confidential basis prior to disclosure by a Loan Party and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry.

EACH BANK ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS SECTION FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWERS, THE GUARANTOR AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY A BORROWER, THE GUARANTOR OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT A BORROWER, THE GUARANTOR AND THEIR AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH BANK REPRESENTS TO THE BORROWERS, THE GUARANTOR AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

 

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SECTION 11.08. Governing Law . This Agreement and the Notes shall be governed by, and construed in accordance with, the internal laws (as distinguished from the conflicts of laws rules) of the State of New York.

SECTION 11.09. Jurisdiction; Consent to Service of Process .

(a) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, and of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement against the other parties hereto or their respective properties in the courts of any jurisdiction.

(b) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in clause (b) of this Section. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11.02 ; provided , however , that with respect to any Borrower, service of process on such Borrower may be made on the Guarantor in the manner provided for notices in Section 11.02 and addressed to such Borrower, and each Borrower agrees that such service so made shall be effective against such Borrower. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 11.10. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

64


SECTION 11.11. Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed signature page of this Agreement by facsimile transmission or in a .PDF or similar file shall be effective as delivery of a manually executed counterpart hereof.

SECTION 11.12. Severability . Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

SECTION 11.13. Entire Agreement . This Agreement, taken together with all of the other documents, instruments and certificates contemplated herein to be delivered by the Borrowers, including, the fee letters (if any) executed and delivered prior to the effective date of this Agreement by the Administrative Agent, the Syndication Agents, the Co-Lead Arrangers and the Borrowers, embodies the entire agreement and supersedes all prior agreements, written and oral, relating to the subject matter hereof as among the Borrowers, the Banks parties hereto and the Administrative Agent.

SECTION 11.14. Market Disruption . Notwithstanding the satisfaction of all conditions referred to in Article II and Article VI with respect to any Advance denominated in an Agreed Currency other than in Euro, if there shall occur on or prior to the date of such Advance any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which, after the exercise of the Administrative Agent’s best efforts, would in the reasonable opinion of the Administrative Agent or the Majority Banks make it materially disadvantageous for such Advance to be denominated in the Agreed Currency specified by a Borrower, then the Administrative Agent shall forthwith give notice thereof to such Borrower and the Banks, and such Advance shall not be denominated in such Agreed Currency but shall be made on such Borrowing Date in Euro, in an aggregate principal amount approximately equal to the Euro Amount of the aggregate principal amount specified in the related Notice of Borrowing or Notice of Interest Period Election, as the case may be, unless such Borrower notifies the Administrative Agent at least one Business Day before such date that it elects not to borrow on such date.

SECTION 11.15. Existing Euro Facility . The Banks that are parties to the Existing Euro Facility (which constitute “Majority Banks” thereunder) waive any notice of the termination of the commitments thereunder and such Banks and Baxter Healthcare SA agree that such commitments automatically shall terminate concurrently with the effectiveness hereof pursuant to Section 6.01 .

SECTION 11.16. Judgment Currency . If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from a Borrower hereunder in the currency expressed to be payable herein (the “ specified currency ”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent

 

65


could purchase the specified currency with such other currency at the Administrative Agent’s office in London on the Business Day preceding that on which final, non-appealable judgment is given. The obligations of a Borrower in respect of any sum due to any Bank or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Bank or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Bank or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Bank or the Administrative Agent, as the case may be, in the specified currency, the Applicable Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Bank or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Bank or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Banks as a result of allocations of such excess as a disproportionate payment to such Bank under Section 5.17 , such Bank or the Administrative Agent, as the case may be, agrees to remit such excess to the Applicable Borrower.

SECTION 11.17. USA PATRIOT ACT . Each Bank that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”) hereby notifies the Borrowers that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Bank to identify the Borrowers in accordance with the Act.

SECTION 11.18. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrowers acknowledge and agree that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Mandated Lead Arrangers and the Banks are arm’s-length commercial transactions between the Borrowers, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Mandated Lead Arrangers and the Banks, on the other hand, (ii) each Borrower and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent, the Mandated Lead Arrangers and each Bank is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of Loan Party’s Affiliates, or any other Person and (ii) neither the Administrative Agent, the Mandated Lead Arrangers nor any Bank has any obligation to any Loan Party or any Loan Party’s Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, the Mandated Lead Arrangers and the Banks and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates, and

 

66


none of the Administrative Agent, the Mandated Lead Arrangers, or any Bank has any obligation to disclose any of such interests to any Loan Party or any Loan Party’s Affiliates. To the fullest extent permitted by law, each of the Banks and each Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Mandated Lead Arrangers or any Bank with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

SECTION 11.19. Lending Installations . Notwithstanding any other provision of this Agreement, each Bank at its option may make any Advance or issue any Letter of Credit, as applicable, by causing any domestic or foreign office, branch or Affiliate of such Bank (an “ Applicable Lending Installation ”) to make such Advance or Letter of Credit that has been designated by such Bank to the Administrative Agent; provided that a Bank shall not designate an Alternate Lending Installation if the effect of doing so would increase the amount of the Applicable Borrower’s obligations pursuant to Section 5.13 or 5.15 relative to what they would be absent such designation. All terms of this Agreement shall apply to any such Applicable Lending Installation of such Bank and the Advances, Letters of Credit and any Notes issued hereunder shall be deemed held by each Bank for the benefit of any such Applicable Lending Installation. Each Bank may, by written notice to the Administrative Agent and the Applicable Borrower, designate replacement or additional Applicable Lending Installations through which Advances or Letters of Credit will be made by it and for whose account Advance or Letter of Credit payments are to be made. Any exercise of such option shall not affect the obligation of the Applicable Borrower to repay such Advance or Letter of Credit in accordance with the terms of this Agreement.

[Signature Pages Follow]

 

67


The parties hereto have caused this Agreement to be executed by their respective duly authorized officers or agents, as of the date of this Agreement. This Agreement was executed outside of Belgium.

 

BAXTER HEALTHCARE SA
By:

/s/ Gerald Heritier

Name:

Gerald Heritier

Title: VP Human Resources
By:

/s/ Bernard Kaumanns

Name:

Bernard Kaumanns

Title: Medical Director
BAXTER WORLD TRADE SPRL
By:

/s/ David P. Scharf

Name: David P. Scharf
Title: Authorized Representative
Address for Notice Purposes:
Baxter Healthcare SA
Baxter World Trade SPRL
c/o Baxter International Inc.
One Baxter Parkway, DF6-4E
Deerfield, Illinois 60015
Attention: Treasurer and Assistant Treasurer
Telephone: (224) 948-3212
Telecopy: (224) 948-2624

 

Signature page to Credit Agreement


J.P. MORGAN EUROPE LIMITED
as Administrative Agent
By

/s/ Belinda Lucas

Title:

Authorised Signatory

Belinda Lucas

Associate

 

Address for Notice Purposes:
Floor 6, 25 Bank Street, Canary Wharf,
London, United Kingdom, E14 5JP

 

Signature page to Credit Agreement


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
By:

/s/ Olivier Lopez

Name: Olivier Lopez
Title: Vice President

 

Signature page to Credit Agreement


CITIBANK, N.A., LONDON BRANCH
By:

/s/ Shirley Riches

Name: Shirley Riches
Title: Vice President

 

Signature page to Credit Agreement


DEUTSCHE BANK AG, LONDON BRANCH
By:

/s/ Michael Starmer-Smith

Name: Michael Starmer-Smith
Title: Managing Director
By:

/s/ Dominic Smith

Name: Dominic Smith
Title: M.D.

 

Signature page to Credit Agreement


Bank of America, N.A.
By:

/s/ Joseph L. Corah

Name: Joseph L. Corah
Title: Director

 

Signature page to Credit Agreement


BARCLAYS BANK PLC
By:

/s/ Kayode Sulola

Name: Kayode Sulola
Title: Assistant Vice President
Executed in London, United Kingdom

 

Signature page to Credit Agreement


CREDIT SUISSE INTERNATIONAL
By:

/s/ Garrett Lynskey

Name:

Garrett Lynskey

Title:

Authorised Signatory

By:

/s/ Brian Fitzgerald

Name:

Brian Fitzgerald

Title:

Authorised Signatory

 

Signature page to Credit Agreement


Danske Bank A/S
By:

/s/ Gert Carstens

/s/ Merete Ryvald-Christensen

Name:

Gert Carstens

Merete Ryvald-Christensen

Title:

Senior Loan Manager

Chief Loan Manager

 

Signature page to Credit Agreement


UBS AG, Stamford Branch,

as a Lender

By:

/s/ Craig Pearson

Name:

Craig Pearson

Title:

Associate Director

Banking Product Services, US
By:

/s/ Houssem Daly

Name:

Houssem Daly

Title:

Associate Director

Banking Products Services, US

 

Signature page to Credit Agreement


Exhibit 2.02

FORM OF

NOTICE OF BORROWING

J.P. Morgan Europe Limited,

as Administrative Agent for the

Banks parties to the Credit

Agreement referred to below

Floor 6, 25 Bank Street, Canary Wharf,

London, United Kingdom, E14 5JP

Attention: Nicole Johnson

Ladies and Gentlemen:

The undersigned, [Baxter Healthcare SA]/[Baxter World Trade SPRL], refers to the Credit Agreement, dated as of July 1, 2015 (the “Credit Agreement,” the terms defined therein being used herein as therein defined), among Baxter Healthcare SA, Baxter World Trade SPRL, the Banks parties thereto and J.P. Morgan Europe Limited, as Administrative Agent and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.02 of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is              ,         .

(ii) The aggregate amount of the Proposed Borrowing is [Euro] [Approximate Euro Amount of]             .

(iii) The Interest Period for each Advance made as part of the Proposed Borrowing is [             months].

(iv) The Agreed Currency for each Advance made as part of the Proposed Borrowing is [    ].

(v) The proceeds of the Proposed Borrowing [will not be used, directly or indirectly, to purchase or carry Margin Stock] [will be used to purchase or carry Margin Stock. A duly completed Form FR U-l (OMB No. 7100-0115), executed by a duly authorized officer of the undersigned, accompanies this Notice of Borrowing and sets forth thereon the relevant information with respect to the use of the proceeds of the Proposed Borrowing].

 

Exhibit 2.02

Page 1


Very truly yours,
[BAXTER HEALTHCARE SA]/
[BAXTER WORLD TRADE SPRL]
By:

 

Title:

 

Exhibit 2.02

Page 2


Exhibit 2.03

FORM OF

NOTICE OF INTEREST PERIOD ELECTION

J.P. Morgan Europe Limited,

as Administrative Agent for the

Banks parties to the Credit

Agreement referred to below

Floor 6, 25 Bank Street, Canary Wharf,

London, United Kingdom, E14 5JP

Attention: Nicole Johnson

Ladies and Gentlemen:

The undersigned, [Baxter Healthcare SA]/[Baxter World Trade SPRL], refers to the Credit Agreement, dated as of July 1, 2015 (the “Credit Agreement,” the terms defined therein being used herein as therein defined), among Baxter Healthcare SA, Baxter World Trade SPRL, the Banks parties thereto and J.P. Morgan Europe Limited, as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement of an interest period election, and in that connection sets forth below the information relating to the affected Borrowing (the “ Affected Borrowing ”) as required by Section 2.03 of the Credit Agreement:

(i) The Affected Borrowing is comprised of Advances in the following Agreed Currency:             

(ii) The portion of such Affected Borrowing to be Converted is: [Euro] [Approximate Euro Amount of]             .

(iii) Business Day of the Conversion in respect of the Affected Borrowing is              ,         .

(iv) Upon giving effect to the Conversion, the portion of the Affected Borrowing that is Converted shall be comprised of Advances, each having an Interest Period of                     .

 

Very truly yours,
[BAXTER HEALTHCARE SA]/
[BAXTER WORLD TRADE SPRL]
By:

 

Title:

 

Exhibit 2.03

Page 1


Exhibit 4.01

FORM OF GUARANTY

See attached


GUARANTY

This Guaranty (as it may be amended, restated or modified and in effect from time to time, this “ Guaranty ”) is made as of July 1, 2015 by Baxter International Inc., a Delaware corporation (the “ Guarantor ”), in favor of J.P. Morgan Europe Limited, in its capacity as agent on behalf of the Banks (as hereinafter defined).

R E C I T A L S :

A. Baxter Healthcare SA, Baxter World Trade SPRL, the financial institutions named therein (the “ Banks ”), and J.P. Morgan Europe Limited, as agent (together with its successors and assigns, the “ Agent ”), have entered into a Credit Agreement dated as of the date hereof (as from time to time modified, supplemented, restated or amended, the “ Credit Agreement ”). Each capitalized term used but not otherwise defined herein shall have the meaning ascribed to such term by the Credit Agreement; and the rules of interpretation and provisions regarding accounting terms set forth in Section 1.02 and 1.03 of the Credit Agreement shall apply as if fully set forth herein, mutatis mutandis .

B. The Guarantor is the parent of the Borrowers and will receive substantial and direct benefits from the extensions of credit contemplated by the Credit Agreement and is entering into this Guaranty to induce the Agent and the Banks to enter into the Credit Agreement and extend credit to the Borrowers thereunder.

C. The execution and delivery of this Guaranty is a condition precedent to the obligations of the Banks to extend credit to the Borrowers pursuant to the Credit Agreement.

NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration and as an inducement to the Banks to enter into the Credit Agreement and extend credit to the Borrowers thereunder, the Guarantor hereby agrees as follows:

1. As used in this Guaranty:

Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to the Guarantor or its Subsidiaries from time to time concerning or relating to bribery or corruption.

Baxter Debt Tender ” means the tender offers for, or make-whole redemptions with respect to, up to $3,000,000,000 of the Guarantor’s issued and outstanding indebtedness, to be launched in connection with the Spin Off.

Consolidated ” refers to the full consolidation of the accounts of the Guarantor and its Subsidiaries in accordance with GAAP, including principles of consolidation, consistent with those applied in the preparation of the financial statements referred to in Section 11(f) .

Consolidated Adjusted Debt ” means, as of any date of determination, the amount of Debt as of such date; provided that on any date on which the outstanding principal amount of all Advances under and as defined in the Guarantor’s $1,500,000,000 revolving credit agreement

 

1


dated as of the Closing Date (the “Guarantor Credit Agreement”) is zero, Consolidated Adjusted Debt shall be deemed reduced by an amount equal to the lesser of (a) $1,500,000,000 (the “Cash Cap”) and (b) the sum of (i) 100% of the unrestricted cash and Cash Equivalent Investments (as defined in the Guarantor Credit Agreement) held by the Guarantor and its domestic Consolidated Subsidiaries on such date plus (ii) 65% of the unrestricted cash and Cash Equivalent Investments held by foreign Consolidated Subsidiaries of the Guarantor on such date; provided , further that until the earlier of (x) the date the Guarantor consummates the Baxter Debt Tender in full and (y) September 1, 2015, the Cash Cap shall be increased by $3,000,000,000.

Consolidated EBITDA ” means, with reference to any period, the net income (or loss) of the Guarantor and its Consolidated Subsidiaries for such period, plus , to the extent deducted from revenues in determining such net income (or loss), without duplication, (i) Consolidated Interest Expense, (ii) expense for income taxes paid or accrued, (iii) depreciation and amortization expense, (iv) amortization of intangibles (including goodwill) and organization costs, (v) any extraordinary, unusual or non-recurring non-cash expenses or losses or other non-cash charges (including, whether or not otherwise includable as a separate item in the statement of such net income for such period, non-cash losses on sales of assets outside of the ordinary course of business) which the Guarantor reasonably believes will not result in a cash charge or payment, (vi) cash transaction costs and other costs and expenses arising from, occurring in connection with or relating to the Spin Off and recorded within 18 months after the consummation thereof, including any restructuring costs and expenses, any advisory fees (including investment banking fees), legal accounting costs and expenses, consulting costs and debt breakage costs (including any make whole or prepayment premiums, write offs or swap termination costs), and (vii) cash restructuring charges, non-recurring cash charges, unusual cash charges and extraordinary cash charges (including any Gambro related integration costs and expenses or other similar costs and expenses), provided that the amount under this clause (vii), together with any pro forma cash restructuring charge, non-recurring cash charge and extraordinary cash charge adjustments pursuant to the proviso below shall in no event exceed $150,000,000 in the aggregate for such period and minus , to the extent included in such net income, (a) extraordinary non-cash gains realized other than in the ordinary course of business, (b) gains realized other than in the ordinary course of business that are non-cash, non-operating and non-recurring, and (c) non-cash gains arising from accounting relating to income realized or adjustments to the value of equity held in entities that are not subsidiaries, all as determined in accordance with GAAP and calculated for the Guarantor and its Consolidated Subsidiaries on a consolidated basis; provided , that solely for purposes of calculating Consolidated EBITDA of the Guarantor and its Consolidated Subsidiaries for the quarter ending June 30, 2015, in lieu of determining such amount in accordance with GAAP, such calculation shall be made by taking the applicable figures from the Form 10-Q of the Guarantor for such period and reducing them by the applicable figures from the Form 10-Q of Baxalta Incorporated for such period; provided , further that for purposes of calculating Consolidated EBITDA, if the sales revenue generated by any Person or business unit acquired, divested or liquidated, by the Guarantor or any Subsidiary during such period in the 12 months prior to such acquisition, divestiture or liquidation was $25,000,000 or more, then the consolidated net income of such Person or business unit acquired, or divested or liquidated (plus, to the extent deducted in determining such consolidated net income, Consolidated Interest Expense, income tax expense, depreciation and amortization and non-cash compensation expenses of such Person or business unit) shall be included (or, in the case of a divestiture or liquidation, excluded) on a pro forma basis for such period (assuming the

 

2


consummation of each such acquisition and the incurrence or assumption of any Debt in connection therewith (or the consummation of such divestiture or liquidation) occurred on the first day of such period) in accordance with Article 11 of Regulation S-X of the SEC. Notwithstanding the foregoing, Consolidated EBITDA for each fiscal quarter ending on the date set forth below shall be deemed to be the amount set forth below opposite such fiscal quarter end:

 

Fiscal Quarter Ending

   Consolidated EBITDA  

September 30, 2014

   $ 497,000,000  

December 31, 2014

   $ 478,000,000   

March 31, 2015

   $ 324,000,000   

Consolidated Interest Expense ” means, for any period, total cash interest expense deducted in accordance with GAAP in the computation of net income of the Guarantor and its Consolidated Subsidiaries for such period with respect to all outstanding Debt of the Guarantor and its Consolidated Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs of rate hedging in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).

Consolidated Net Tangible Assets ” means the total amount of assets which would be included on a Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries (and which shall reflect the deduction of applicable reserves) after deducting therefrom all current liabilities of the Guarantor and its Consolidated Subsidiaries and all Intangible Assets.

Consolidated Subsidiary ” means any Subsidiary of the Guarantor the accounts of which are Consolidated.

Debt ” means the sum of: (i) indebtedness for borrowed money or for the deferred purchase price of property or services carried as indebtedness on the Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries (excluding accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (ii) obligations of the Guarantor and its Consolidated Subsidiaries as lessee under leases that, in accordance with GAAP, are recorded as capital leases, and (iii) obligations of the Guarantor and its Consolidated Subsidiaries under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of other parties of the kinds referred to in clauses (i) and (ii) above (other than Debt of any Subsidiary, to the extent such Debt is included in the calculation of Debt as a result of clause (i) or (ii) above) in excess of $100,000,000 in the aggregate for all such obligations described in this clause (iii). The term “Debt” shall not include the undrawn face amount of any letter of credit issued for the account of the Guarantor or any of its Consolidated Subsidiaries, but shall include the reimbursement obligation owing from time to time by the Guarantor or any of its Consolidated Subsidiaries in respect of drawings made under any letter of credit in the event reimbursement is not made immediately following the applicable drawing .

 

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Exchange Act ” means the Securities Exchange Act of 1934.

Guaranteed Obligations ” is defined in Section 2 .

Intangible Assets ” means all assets of the Guarantor and its Consolidated Subsidiaries which are treated as intangibles in conformity with GAAP on the Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries.

Interest Coverage Ratio ” means, (i) as of the last day of the fiscal quarter ended September 30, 2015, the ratio of (A) Consolidated EBITDA for such fiscal quarter to (B) Consolidated Interest Expense for such fiscal quarter, (ii) as of the last day of the period of two consecutive fiscal quarters ended December 31, 2015, the ratio of (A) Consolidated EBITDA for such period of two consecutive fiscal quarters to (B) Consolidated Interest Expense for such period, (iii) as of the last day of the three fiscal quarter period ended March 31, 2016, the ratio of (A) Consolidated EBITDA for such period of three consecutive fiscal quarters to (B) Consolidated Interest Expense for such period and (iv) as of the last day of any period of four consecutive fiscal quarters ending on or after June 30, 2016, the ratio of (A) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended, to (B) Consolidated Interest Expense for such period.

Material Acquisition ” means a transaction whereby by the Guarantor or one of its Consolidated Subsidiaries acquires equity interests or assets of a Person (or a division or particular business of a Person), or merges, consolidates or otherwise combines with a Person (excluding, in each case above, a Person that was a Consolidated Subsidiary prior to such transaction), for aggregate cash consideration of $250,000,000 or more.

Material Subsidiary ” means any subsidiary of the Guarantor that would be a significant subsidiary of the Guarantor within the meaning of Rule 1-02(w)(2) under Regulation S-X promulgated by the Securities and Exchange Commission; provided that the reference to “10 percent of the total assets of the registrant and its subsidiaries” therein shall be deemed for the purposes of this definition to read as “20 percent of the total assets of the registrant and its subsidiaries”. As of the Closing Date, the Material Subsidiaries are Baxter Healthcare Corporation and Baxter World Trade Corporation.

Net Leverage Ratio ” means, as of the last day of any period of four consecutive fiscal quarters, the ratio of (i) Consolidated Adjusted Debt as of such day to (ii) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.

Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (ii) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

Sanctioned Country ” means, at any time, a country or territory that is the subject or target of comprehensive country-wide economic or financial sanctions or trade embargoes imposed, administered or enforced by any Person listed in the definition of “Sanctions” (the Sanctioned Countries as of the date hereof being Crimea, Cuba, Iran, North Korea, Sudan and Syria).

 

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Sanctioned Person ” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union or any European Union member state, (ii) any Person operating, organized or resident in a Sanctioned Country or (iii) any Person controlled or more than 50% owned by any such Person.

SEC ” means the United States Securities and Exchange Commission or any successor thereto.

Secured Debt ” means the amount of Debt or other obligation or liability of the Guarantor or any of its Material Subsidiaries the payment of which is secured by a Security Interest.

Security Interest ” means any lien, security interest, mortgage or other charge or encumbrance of any kind, title retention device, pledge or any other type of preferential arrangement, upon or with respect to any property of the Guarantor or of any Material Subsidiary, whether now owned or hereafter acquired.

Subsidiary ” means any entity with respect to which the Guarantor alone owns, the Guarantor and one or more Subsidiaries together own, or the Guarantor and any Person controlling the Guarantor together own, in each such case directly or indirectly, capital stock (or the equivalent equity interest) having ordinary voting power to elect a majority of the members of the Board of Directors of such corporation (or, in the case of a partnership or joint venture, having the majority interest in the capital or profits of such entity).

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.

2. The Guarantor hereby absolutely, irrevocably and unconditionally guarantees prompt, full and complete payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of (a) the principal of and interest on the Advances (including Swingline Loans) and reimbursement obligations in respect of Letters of Credit made or issued by the Banks, the Swingline Banks and Issuing Banks to, and any Notes held by the Banks of, the Borrowers and (b) all other amounts from time to time owing to the Banks, the Swingline Banks, the Issuing Banks or the Administrative Agent by the Borrowers under the Loan Documents (collectively, the “ Guaranteed Obligations ”). This is a guaranty of payment, not a guaranty of collection.

3. The Guarantor waives notice of the acceptance of this Guaranty and of the extension, incurrence or continuance of the Guaranteed Obligations or any part thereof. The Guarantor further waives all setoffs and counterclaims and presentment, protest, notice, filing of claims with a court in the event of receivership, bankruptcy or reorganization of any Borrower, demand or action on delinquency in respect of the Guaranteed Obligations or any part thereof,

 

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including any right to require the Banks to sue the Guarantor, any Borrower, any other guarantor or any other Person obligated with respect to the Guaranteed Obligations or any part thereof, or otherwise to enforce payment thereof against any collateral securing the Guaranteed Obligations or any part thereof.

4. The Guarantor hereby agrees that, to the fullest extent permitted by law, its obligations hereunder shall be continuing, absolute and unconditional under any and all circumstances and not subject to any reduction, limitation, impairment, termination, defense (other than indefeasible payment in full), setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by it to the fullest extent permitted by law), whether by reason of any claim of any character whatsoever, including any claim of waiver, release, surrender, alteration or compromise. The validity and enforceability of this Guaranty shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitution for, the Guaranteed Obligations or any part thereof or any agreement relating thereto at any time; (b) any failure or omission to perfect or maintain any lien on, or preserve rights to, any security or collateral or to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Guaranteed Obligations or any part thereof; (c) any waiver of any right, power or remedy or of any default with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any collateral securing the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligations of any person or entity with respect to the Guaranteed Obligations or any part thereof; (e) the non-enforceability or invalidity of the Guaranteed Obligations or any part thereof or the spuriousness, non-enforceability or invalidity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof; (f) the application of payments received from any source to the payment of indebtedness other than the Guaranteed Obligations, any part thereof or amounts which are not covered by this Guaranty even though the Banks might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations or to amounts which are not covered by this Guaranty; (g) any change of ownership of any Borrower or the insolvency, bankruptcy or any other change in the legal status of any Borrower; (h) any change in, or the imposition of, any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Guaranteed Obligations; (i) the failure of any Borrower to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Guaranteed Obligations or this Guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Guaranteed Obligations or this Guaranty; (j) the existence of any claim, setoff or other rights which the Guarantor may have at any time against any Borrower or any other guarantor or any other Person in connection herewith or with any unrelated transaction; (k) the Banks’ election, in any case or proceeding instituted under chapter 11 of the United States Bankruptcy Code, of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a security interest by any Borrower, as debtor in possession, under Section 363 or 364 of the United States Bankruptcy Code; (m) the disallowance of all or any portion of the Bank’s claims for repayment of the Guaranteed Obligations under Section 502 or

 

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506 of the United States Bankruptcy Code; or (n) any other fact or circumstance which might otherwise constitute grounds at law or equity for the discharge or release of the Guarantor from its obligations hereunder, all whether or not the Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a)  through (n)  of this Section. It is agreed that the Guarantor’s liability hereunder is independent of any other guaranties or other obligations at any time in effect with respect to the Guaranteed Obligations or any part thereof and that the Guarantor’s liability hereunder may be enforced regardless of the existence, validity, enforcement or non-enforcement of any such other guaranties or other obligations or any provision of any applicable law or regulation purporting to prohibit payment by any Borrower of the Guaranteed Obligations in the manner agreed upon among the Agent, the Borrowers and the Banks.

5. Credit may be granted or continued from time to time by the Banks to any Borrower without notice to or authorization from the Guarantor regardless of any Borrower’s financial or other condition at the time of any such grant or continuation. The Banks shall not have an obligation to disclose or discuss with the Guarantor their assessment of the financial condition of any Borrower.

6. Until the irrevocable payment in full of the Guaranteed Obligations and termination of all commitments which could give rise to any of the Guaranteed Obligations, (a) the Guarantor shall have no right of subrogation with respect to the Guaranteed Obligations, (b) the Guarantor hereby waives any right to enforce any remedy which the Agent or the Banks now have or may hereafter have against any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, and (c) the Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to the Agent or the Banks to secure payment of the Guaranteed Obligations or any part thereof or any other liability of any Borrower to the Banks.

7. The Guarantor authorizes the Banks to take any action or exercise any remedy with respect to any collateral securing the Guaranteed Obligations, which the Banks in their sole discretion shall determine, without notice to the Guarantor.

8. In the event the Banks in their sole discretion elect to give notice of any action with respect to any collateral securing the Guaranteed Obligations or any part thereof, ten (10) days’ written notice mailed to the Guarantor by ordinary mail at its address referred to in Section 20 shall be deemed reasonable notice of any matters contained in such notice. The Guarantor consents and agrees that neither the Agent nor the Banks shall be under any obligation to marshall any assets in favor of the Guarantor or against or in payment of any or all of the Guaranteed Obligations.

9. In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, all such amounts shall nonetheless be payable by the Guarantor forthwith upon demand by the Agent or the Banks. The Guarantor further agrees that, to the extent that any Borrower makes a payment or payments to any of the Banks on the Guaranteed Obligations, or the Agent or the Banks receive any proceeds of collateral securing the Guaranteed Obligation, which payment or receipt of proceeds or any part thereof is subsequently

 

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invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to the applicable Borrower, its estate, trustee, receiver, debtor in possession or any other party, including the Guarantor, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred.

10. No delay on the part of the Agent or the Banks in the exercise of any right, power or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent or the Banks of any right, power or remedy shall preclude any further exercise thereof; nor shall any amendment, supplement, modification or waiver of any of the terms or provisions of this Guaranty be binding upon the Agent or the Banks, except as expressly set forth in a writing duly signed and delivered on the Banks’ behalf of the Agent. The failure by the Agent or the Banks at any time or times hereafter to require strict performance by any Borrower or the Guarantor of any of the provisions, warranties, terms and conditions contained in any promissory note, pledge agreement, security agreement, agreement, guaranty, instrument or document now or at any time or times hereafter executed pursuant to the terms of, or in connection with, the Credit Agreement by any Borrower or the Guarantor and delivered to the Agent or the Banks shall not waive, affect or diminish any right of the Agent or the Banks at any time or times hereafter to demand strict performance thereof, and such right shall not be deemed to have been waived by any act or knowledge of the Agent or the Banks, their agents, officers or employees, unless such waiver is contained in an instrument in writing duly signed and delivered on the Banks’ behalf by the Agent. No waiver by the Agent or the Banks of any default shall operate as a waiver of any other default or the same default on a future occasion, and no action by the Banks permitted hereunder shall in any way affect or impair the Agent’s or the Banks’ rights or powers, or the obligations of the Guarantor under this Guaranty. Any determination by a court of competent jurisdiction of the amount of any Guaranteed Obligations owing by the Guarantor to the Banks shall be conclusive and binding on each Guarantor irrespective of whether the Guarantor was a party to the suit or action in which such determination was made.

11. The Guarantor represents and warrants to the Agent and the Banks that:

(a) The Guarantor and each Material Subsidiary is duly organized, validly existing and, to the extent such concept is relevant, in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which the failure so to qualify would have a material adverse effect on the financial condition or operations of the Guarantor;

(b) The execution, delivery and performance by the Guarantor of this Guaranty are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Guarantor’s charter or by-laws or (ii) any law or any contractual restriction binding on or affecting the Guarantor;

(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Guarantor of this Guaranty;

 

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(d) This Guaranty is the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(e) Except as disclosed by the Guarantor in its SEC filings prior to the date hereof, there is no pending or, to the knowledge of the Guarantor, threatened action or proceeding affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator, (i) which could reasonably be expected to have a material adverse effect on the financial condition or operations of the Guarantor or (ii) which could reasonably be expected to affect the legality, validity or enforceability of this Guaranty;

(f) The Consolidated balance sheet at December 31, 2014, and the related Consolidated statements of income, cash flows and shareholder’s equity and comprehensive income for the period then ended of the Guarantor and its Consolidated Subsidiaries filed by the Guarantor with the SEC present fairly in all material respects the financial condition of the Guarantor and its Consolidated Subsidiaries at December 31, 2014, and the results of the operations and cash flows of the Guarantor and its Consolidated Subsidiaries for the year then ended, in conformity with GAAP applied on a basis consistent with that of the preceding year. The Consolidated balance sheet at March 31, 2015 and the related Consolidated statements of income and cash flows for the quarter then ended of the Guarantor and its Consolidated Subsidiaries filed by the Guarantor with the SEC present fairly in all material respects the financial condition of the Guarantor and its Consolidated Subsidiaries at March 31, 2015 and the results of the operations and cash flows of the Guarantor and its Consolidated Subsidiaries for the quarter then ended, in conformity with GAAP consistently applied, subject to the absence of footnotes and year-end audit adjustments. Since December 31, 2014, except as disclosed in filings with the SEC prior to the date of this Guaranty or in the Form 10, there has been no material adverse change in such financial condition or operations;

(g) The operations of the Guarantor and each Material Subsidiary comply in all material respects with all Environmental Laws, the noncompliance with which would materially adversely affect the financial condition or operations of the Guarantor;

(h) The Guarantor is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940;

(i) The Guarantor has implemented and maintains in effect policies and procedures designed to ensure compliance by the Guarantor, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Guarantor, its Subsidiaries and their respective officers and employees and to the knowledge of the Guarantor its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Guarantor, any Subsidiary or, to the knowledge of the Guarantor or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of the Guarantor, any agent of the Guarantor or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person, except to the extent the Guarantor or

 

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such Subsidiary is licensed by the appropriate Sanctions-administering authority to engage in the applicable transaction with such Sanctioned Person or is otherwise permitted to do so by U.S. law. No Borrowing or Letter of Credit, use of proceeds or other transaction contemplated by the Credit Agreement will violate Anti-Corruption Laws or applicable Sanctions; and

(j) Neither the Guarantor nor any of its Subsidiaries is engaged as a substantial part of its activities in the business of purchasing or carrying Margin Stock. The value of the Margin Stock owned directly or indirectly by the Guarantor or any Subsidiary which is subject to any arrangement (as such term is used in Section 221.2(g) of Regulation U issued by the Board of Governors of the Federal Reserve System) hereunder is less than an amount equal to twenty-five percent (25%) of the value of all assets of the Guarantor and/or such Subsidiary subject to such arrangement.

The Guarantor agrees that the foregoing representations and warranties shall be deemed to have been made by the Guarantor on the date of this Guaranty and on the date of each Notice of Borrowing (except to the extent any such representation or warranty is stated to relate solely to an earlier date and other than subsections (e), (f) and (g) hereof) with respect to each Advance under the Credit Agreement on and as of such Borrowing Date.

12. As long as this Guaranty shall continue in effect, the Guarantor shall:

(a) provide to the Agent in sufficient copies for distribution to each Bank:

(i) As soon as available and in any event within the earlier of (A) five (5) days after the time period specified by the SEC under the Exchange Act for quarterly reporting or (B) fifty-five (55) days after the end of each of the first three (3) quarters of each fiscal year of the Guarantor, a Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as of the end of such quarter and a Consolidated statement of income and cash flows (or Consolidated statement of changes in financial position, as the case may be) of the Guarantor and its Consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of the Guarantor (it being understood that the certification provided by the chief financial officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 is acceptable for this purpose); provided , however , that at any time the Guarantor shall be subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, delivery within the time period specified above of copies of the quarterly balance sheets and statements on Form 10-Q of the Guarantor and its Consolidated Subsidiaries for such quarterly period as filed with the SEC shall be deemed to satisfy the requirements of this clause (i) ;

(ii) As soon as available and in any event within the earlier of (A) five (5) days after the time period specified by the SEC under the Exchange Act for annual reporting or (B) one hundred (100) days after the end of each fiscal year of the Guarantor, a Consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as of the end of such year and a Consolidated statement of income, cash flows and shareholder’s equity and comprehensive income of the Guarantor

 

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and its Consolidated Subsidiaries for such fiscal year and accompanied by a report of PricewaterhouseCoopers LLP, or other independent public accountants of nationally recognized standing, on the results of their examination of the Consolidated annual financial statements of the Guarantor and its Consolidated Subsidiaries, which report shall be unqualified as to a “going concern” or like qualification or exception or as to the scope of such audit or shall be otherwise reasonably acceptable to the Majority Banks; provided further , that at any time the Guarantor shall be subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, delivery within the time period specified above of copies of the annual balance sheets and statements on Form 10-K of the Guarantor and its Consolidated Subsidiaries for such annual period as filed with the SEC shall be deemed to satisfy the requirements of this clause (ii) ;

(iii) Promptly after the sending or filing thereof, copies of all reports which the Guarantor files with the SEC under the Exchange Act;

provided , that such quarterly and annual financial statements and reports filed with the SEC required pursuant to clauses (i), (ii) and (iii) above shall be deemed delivered to the Administrative Agent on the earlier of the date such statements or reports are available at (i)  www.sec.gov and (ii) the Guarantor’s website at www.baxter.com ;

(iv) Together with the financial statements required pursuant to clauses (i) and (ii)  above, a certificate signed by the chief financial officer of the Guarantor (A) stating that no Event of Default or Unmatured Event of Default exists or, if any does exist, stating the nature and status thereof and describing the action the Guarantor proposes to take with respect thereto, and (B) demonstrating, in reasonable detail, the calculations used by such officer to determine compliance with the financial covenants contained in Sections 12(m) (if applicable) and 12(n) ; and

(v) As soon as possible, and in any event within five Business Days after the Guarantor shall become aware of the occurrence of any Event of Default or Unmatured Event of Default, which Event of Default or event is continuing on the date of such statement, a statement of the chief financial officer of the Guarantor setting forth details of such Event of Default or event and the action which the Guarantor proposes to take with respect thereto.

(b) Pay and discharge, and cause each Material Subsidiary to pay and discharge, before the same shall become delinquent, (i) all Taxes, assessments and governmental charges or levies imposed upon it or upon its income, profit or property, and (ii) all lawful claims which, if unpaid, might by law become a lien upon its property; provided , however , that neither the Guarantor nor any Material Subsidiary shall be required to pay or discharge any such tax, assessment, charge or claim (x) which is being contested in good faith and by proper proceedings and with respect to which the Guarantor shall have established appropriate reserves in accordance with GAAP or (y) if the non-payment thereof is not materially adverse to the financial condition or operations of the Guarantor.

 

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(c) Maintain, and cause each Material Subsidiary to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by (or, as applicable, self-insure in a manner and to an extent not inconsistent with conventions observed by) companies engaged in similar businesses and owning similar properties in the same general areas in which the Guarantor or such Material Subsidiary operates.

(d) Preserve and maintain, and cause each Material Subsidiary to preserve and maintain, its organizational existence, rights, and franchises, except as otherwise permitted by Section 12(j) ; provided , however , that neither the Guarantor nor any Material Subsidiary shall be required to preserve any right or franchise if the Board of Directors of the Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of business of the Guarantor or such Material Subsidiary, as the case may be, and that the loss thereof is not materially adverse to the financial condition or operations of the Guarantor.

(e) Comply, and cause each Material Subsidiary to comply, with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws), noncompliance with which would materially adversely affect the financial condition or operations of the Guarantor.

(f) Keep, and cause each Material Subsidiary to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Guarantor and each Material Subsidiary sufficient to prepare financial statements in accordance with GAAP.

(g) [reserved];

(h) Not suffer to exist, create, assume or incur, or permit any of its Material Subsidiaries to suffer to exist, create, assume or incur, any Security Interest, or assign, or permit any of its Material Subsidiaries to assign, any right to receive income, in each case to secure Debt or any other obligation or liability, other than:

(i) Any Security Interest to secure Debt or any other obligation or liability of any Material Subsidiary to the Guarantor;

(ii) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith and for which reasonable reserves have been established;

(iii) Any Security Interest arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulation which is required by law or governmental regulation as a condition to the transaction of any business, or the exercise of any privilege, franchise or license;

(iv) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent or Security Interests for taxes, assessments or

 

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governmental charges or levies already delinquent but the validity of which is being contested in good faith and for which reasonable reserves have been established in accordance with GAAP;

(v) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, the related judgment does not constitute an Event of Default under Section 9.01(g) of the Credit Agreement;

(vi) Landlords’ liens on fixtures located on premises leased by the Guarantor or one of its Material Subsidiaries in the ordinary course of business;

(vii) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States of America, any state thereof, or any department, agency or instrumentality of the United States or any state thereof for obligations not yet delinquent;

(viii) Any Security Interest arising by reason of deposits to qualify the Guarantor or a Subsidiary to conduct business, to maintain self-insurance, or to obtain the benefit of, or comply with, laws;

(ix) Any purchase money Security Interest claimed by sellers of goods on ordinary trade terms provided that no financing statement has been filed to perfect such Security Interest;

(x) The extension of any Security Interest existing as of the date hereof to additions, extensions, or improvements to the property subject to the Security Interest which does not arise as a result of borrowing money or the securing of Debt or other obligation or liability created, assumed or incurred after such date;

(xi) Security Interests on (A) property of a corporation or firm existing at the time such corporation or firm is merged or consolidated with the Guarantor or any Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or a firm as an entirety (or the properties of a corporation or firm comprising a product line or line of business, as an entirety) or substantially as an entirety to the Guarantor or a Subsidiary; or (B) property comprising machinery, equipment or real property acquired by the Guarantor or any of its Subsidiaries, which Security Interests shall have existed at the time of such acquisition and secure obligations assumed by the Guarantor or such Subsidiary in connection with such acquisition; provided that the Security Interests of the type described in this paragraph (xi) shall not attach to or affect property owned by the Guarantor or such Subsidiary prior to the event referred to in this paragraph (xi);

(xii) Security Interests arising in connection with the sale, assignment or other transfer by the Guarantor or any Material Subsidiary of accounts receivable, lease receivables or other payment obligations (together with rights and assets

 

13


related thereto, any of the foregoing being a “ Receivable ”) owing to the Guarantor or any Subsidiary or any interest in any of the foregoing (together in each case with any collections and other proceeds thereof and any collateral, guaranties or other property or claims in favor of the Guarantor or such Subsidiary supporting or securing payment by the obligor thereon of any such Receivables), in each case whether such sale, assignment or other transfer constitutes a “true sale” or a secured financing for accounting, tax or any other purpose; provided that either (i) such sale, assignment or other transfer shall have been made as part of a sale of the business out of which the applicable Receivables arose, (ii) such sale, assignment or other transfer is made in the ordinary course of business and is for the purpose of collection only, (iii) such sale, assignment or other transfer is made in connection with an agreement on the part of the assignee thereof to render performance under the contract that has given rise to such Receivable, or (iv) in all other cases, the aggregate outstanding principal amount of the investment or claim held by purchasers, assignees or other transferees of (or of interests in) such Receivables (as determined by the Guarantor using any reasonable methods as of the time any such investment is made or claim is incurred) shall not exceed an amount equal to ten percent (10%) of the Consolidated total assets of the Guarantor and its Consolidated Subsidiaries at such time;

(xiii) Security Interests securing non-recourse obligations in connection with leveraged or single-investor lease transactions;

(xiv) Security Interests securing the performance of any contract or undertaking made in the ordinary course of business (as such business is currently conducted) other than for the borrowing of money;

(xv) Any Security Interest granted by the Guarantor or any Material Subsidiary of the Guarantor; provided , that (i) the property which is subject to such Security Interest is a parcel of real property, a manufacturing plant, manufacturing equipment, a warehouse, or an office building hereafter acquired, constructed, developed or improved by the Guarantor or such Material Subsidiary, and (ii) such Security Interest is created prior to or contemporaneously with, or within 120 days after (x) in the case of acquisition of such property, the completion of such acquisition and (y) in the case of the construction, development or improvement of such property, the later to occur of the completion of such construction, development or improvement or the commencement of operations, use or commercial production (exclusive of test and start-up periods) of such property, and such Security Interest secures or provides for the payment of all or any part of the acquisition cost of such property or the cost of construction, development or improvement thereof, as the case may be;

(xvi) Any conditional sales agreement or other title retention agreement with respect to property acquired by the Guarantor or any Material Subsidiary;

 

14


(xvii) Any Security Interest that secures an obligation owed to the United States of America or any state, territory or possession of the United States of America, any political subdivision of any of the foregoing or the District of Columbia (each, a “ Governmental Entity ”) in connection with a bond or other obligation issued by a Governmental Entity to finance the construction or acquisition by the Guarantor or any Material Subsidiary of any manufacturing plant, warehouse, office building or parcel of real property (including fixtures);

(xviii) Any Security Interest in deposits or cash equivalent investments pledged with a financial institution for the sole purpose of implementing a hedging or financing arrangement commonly known as a “back-to-back” loan arrangement, provided in each case that neither the assets subject to such Security Interest nor the Debt incurred in connection therewith are reflected on the Consolidated balance sheet of the Guarantor;

(xix) Security Interests of financial institutions as collecting banks or with respect to deposit or securities accounts held at such financial institutions, in each case in the ordinary course of business; and

(xx) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Debt or any other obligation or liability secured by any Security Interest referred to in the foregoing paragraphs (i) through (xix), provided that the principal amount of Debt or any other obligation or liability secured by such Security Interest shall not exceed the principal amount outstanding immediately prior to such extension, renewal or refunding, and that the Security Interest securing such Debt or other obligation or liability shall be limited to the property which, immediately prior to such extension, renewal or refunding secured such Debt or other obligation or liability and additions to such property.

Notwithstanding the foregoing provisions of this Section 12(h) (but without limiting or affecting the provisions of Section 12(m) ), the Guarantor and its Material Subsidiaries may, at any time, suffer to exist, issue, incur, assume and guarantee Secured Debt (in addition to Secured Debt permitted to be secured under the foregoing paragraphs (i) through (xx) ), provided that the aggregate amount of such Secured Debt, together with the aggregate amount of all other Secured Debt (not including Secured Debt permitted to be secured under the foregoing paragraphs (i) through (xx )) of the Guarantor and its Material Subsidiaries which is suffered to exist, issued, incurred, assumed or guaranteed after July 1, 2015, does not at such time exceed 10% of Consolidated Net Tangible Assets.

(i) [reserved];

(j) (i) Not merge or consolidate with or into, or Transfer Assets to, any Person, except that the Guarantor may (A) merge or consolidate with any corporation, including any Subsidiary, which is a U.S. Corporation and (B) Transfer Assets to any Subsidiary which is a U.S. Corporation; provided , in each case described in clause (A) and (B) above, that (x) immediately after giving effect to such transaction, no event shall have occurred and be

 

15


continuing which constitutes an Event of Default or Unmatured Event of Default and (y) in the case of any merger or consolidation to which the Guarantor shall be a party, the survivor of such merger or consolidation shall be the Guarantor; and

(ii) Not permit any Material Subsidiary to merge or consolidate with or into, or Transfer Assets to, any Person unless, immediately after giving effect to such transaction, no event shall have occurred and be continuing which constitutes an Event of Default or Unmatured Event of Default.

For purposes of this Section 12(j) : “ Transfer Assets ” means, when referring to the Guarantor, the conveyance, transfer, lease or other disposition (whether in one transaction or in a series of transactions) of all or substantially all of the assets of the Guarantor or of the Guarantor and its Subsidiaries considered as a whole and means, when referring to a Material Subsidiary, the conveyance, transfer, lease or other disposition (whether in one transaction or in a series of transactions) of all or substantially all of the assets of such Material Subsidiary; and “ U.S. Corporation ” means a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia.

(k) Not permit any Borrower to request any Advance or Letter of Credit, and not permit any Borrower to use, and procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Advance or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transactions of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent licensed by the appropriate Sanctions-administering authority to engage in the applicable transaction with such Sanctioned Person or, as applicable, in such Sanctioned Country or otherwise permitted by U.S. law, or (C) in any manner that would result in the violation of any Sanctions applicable to any party to the Credit Agreement.

(l) Maintain in effect and enforce policies and procedures designed to ensure compliance by the Guarantor, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

(m) Not permit the Net Leverage Ratio to be greater than (1) 5.00 to 1.00 at the end of any fiscal quarter until and including December 31, 2015, (2) 4.75 to 1.00 at the end of the fiscal quarters ending on March 31, 2016, June 30, 2016 and September 30, 2016, (3) 4.25 to 1.00 at the end of the fiscal quarter ending December 31, 2016 and (4) 3.50 to 1.00 at the end of any fiscal quarter ending thereafter; provided that the ratio in this clause (4)  shall be increased to 4.00 to 1.00 for the four fiscal quarter ends next following the consummation of any Material Acquisition.

(n) Not permit the Interest Coverage Ratio to be less than 3.00 to 1.00 as of the end of each fiscal quarter.

 

16


13. Subject to the provisions of Section 9 hereof, this Guaranty shall continue in effect until the Credit Agreement has terminated, the Guaranteed Obligations have been paid in full and the other conditions of this Guaranty have been satisfied.

14. In addition to and without limitation of any rights, powers or remedies of the Agent or the Banks under applicable law, any time after maturity of the Guaranteed Obligations, whether by acceleration or otherwise, the Agent or any of the Banks may, in its sole discretion, with notice after the fact to the Guarantor (provided that any failure to give such notice shall not affect the validity of any such appropriation or application referred to herein) and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of any Guaranteed Obligations (a) any indebtedness due or to become due from the Banks to the Guarantor, and (b) any moneys, credits or other property belonging to the Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of any of the Agent or any Bank whether for deposit or otherwise.

15. The Guarantor agrees to pay all reasonable and documented out-of-pocket costs, fees and expenses (including reasonable fees and out-of-pocket expenses of outside counsel) incurred by the Banks in collecting or enforcing the obligations of the Guarantor under this Guaranty.

16. This Guaranty shall bind the Guarantor and its successors and assigns and shall inure to the benefit of the Agent, the Banks and their successors and assigns. All references herein to the Banks shall for all purposes also include all assignees of any Bank. All references herein to any Borrower shall be deemed to include its successors and assigns including a receiver, trustee or debtor in possession of or for such Borrower.

17. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AT NEW YORK, NEW YORK, AND SHALL BE CONSTRUED AND THE RIGHTS AND LIABILITIES OF THE AGENT, THE BANKS AND THE GUARANTOR DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.

18. Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

19. Except as otherwise expressly provided herein, any notice required or desired to be served, given or delivered to any party hereto under this Guaranty shall be in writing by facsimile, U.S. mail or overnight courier and addressed or delivered to such party (a) if to the Agent or the Banks, at their respective addresses set forth in the Credit Agreement, or (b) if to the Guarantor, at its address indicated on Exhibit A hereto, or to such other address as the Agent, any of the Banks or the Guarantor designates to the other in writing. All notices by United States mail shall be sent certified mail, return receipt requested. All notices hereunder shall be effective upon delivery or refusal of receipt; provided , that any notice transmitted by facsimile shall be deemed given when transmitted.

 

17


20. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 9.01 of the Credit Agreement to authorize the Administrative Agent to declare the Advances due and payable pursuant to the provisions of Section 9.01 of the Credit Agreement, each Bank (and each of its Affiliates) is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank (or any of its Affiliates) to or for the credit or the account of the Guarantor against any and all of the obligations of the Guarantor now or hereafter existing under the Loan Documents, irrespective of whether or not such Bank shall have made any demand under the Loan Documents and of whether or not such obligations may be matured. Each Bank agrees promptly to notify the Guarantor after any such set-off and application made by such Bank, but the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Bank under this Section are in addition to other rights and remedies (including other rights of set-off) which such Bank may have.

21. THE GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.

22. The Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, and of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any judgment, and the Guarantor hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. The Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that the Agent may otherwise have to bring any action or proceeding relating to this Guaranty against the Guarantor or its properties in the courts of any jurisdiction.

23. The Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any court referred to in the first sentence of the preceding paragraph. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

18


24. The Guarantor irrevocably consents to service of process in the manner provided for notices in Section 19 . Nothing in this Guaranty will affect the right of any Person to serve process in any other manner permitted by law.

[Signature Page Follows]

 

19


IN WITNESS WHEREOF, the Guarantor has entered into this Guaranty as of the date first written above.

 

BAXTER INTERNATIONAL INC.
By:

 

Name:

 

Title:

 

[signature page to Baxter Guaranty]


EXHIBIT A

Baxter International Inc.

One Baxter Parkway, DF6-4E

Deerfield, Illinois 60015

Attention: Treasurer

Telephone: (224) 948-3212

Telecopy: (224) 948-2624


Exhibit 5.20

FORM OF

DESIGNATION LETTER

            ,         

J.P. Morgan Europe Limited,

as Administrative Agent for the

Banks parties to the Credit

Agreement referred to below

Floor 6, 25 Bank Street, Canary Wharf,

London, United Kingdom, E14 5JP

Attention: [                    ]

Ladies and Gentlemen:

We refer to the Credit Agreement (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “ Credit Agreement ”) dated as of July 1, 2015 among Baxter Healthcare SA, Baxter World Trade SPRL, the Banks parties thereto and J.P. Morgan Europe Limited, as Administrative Agent. Unless otherwise defined herein, capitalized terms used in this Designation Letter have the meanings ascribed thereto in the Credit Agreement.

Baxter International Inc. (the “Guarantor”) hereby designates [                    ] (the “ New Borrower ”), a Wholly-Owned Subsidiary of the Guarantor and a [corporation duly incorporated under the laws of [                    ], as a “Borrower” in accordance with Section 5.20 of the Credit Agreement until such designation is terminated in accordance with Section 5.21 of the Credit Agreement.

The New Borrower hereby accepts the above designation and hereby expressly and unconditionally accepts the obligations of a Borrower under the Credit Agreement and agrees and confirms that, upon your execution and return to the Borrower of the enclosed copy of this letter following the approval of this designation by each of the Banks, the New Borrower shall be a Borrower for purposes of the Credit Agreement and agrees to be bound by and perform and comply with the terms and provisions of the Credit Agreement applicable to it as if it had originally executed the Credit Agreement as a Borrower.

The Guarantor hereby represents and warrants to the Administrative Agent and each Bank that, before and after giving effect to this Designation Letter, (i) the representations and warranties set forth in Article VII of the Credit Agreement and Section 11 of the Guaranty are true and correct on the date hereof as if made on and as of the date hereof, and (ii) no Event of Default or Unmatured Event of Default has occurred and is continuing. The New Borrower represents and

 

Exhibit 5.20


warrants that, in so far as they relate to the New Borrower, each of the representations and warranties set forth in Article VII of the Credit Agreement is true and correct on the date hereof as if made on and as of the date hereof. This Designation Letter shall be governed by, and construed in accordance with, the internal laws (without regard to the conflict of laws provisions) of the State of New York. Without limiting any other provisions hereof, the New Borrower hereby submits to jurisdiction and makes the waivers and otherwise in all aspects agrees to the terms of Sections 11.09(a), (b) and (c) of the Credit Agreement as if fully set forth herein.

The Guarantor hereby (a) agrees that henceforth the New Borrower shall be a “Borrower” for all purposes of the Guaranty, (b) agrees that all obligations of the New Borrower under or relating to the Credit Agreement (including all obligations in respect of the payment of principal, interest and other amounts) shall constitute “Guaranteed Obligations” under the Guaranty and (c) reaffirms all terms and conditions of the Guaranty.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS DESIGNATION LETTER, THE CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DESIGNATION LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.

 

Very truly yours,
BAXTER INTERNATIONAL INC.
By:

 

Name:

 

Title:

 

[NEW BORROWER]
By

 

Name:

 

Title:

 

 

Exhibit 5.20


Exhibit 11.06

FORM OF

ASSIGNMENT AND ACCEPTANCE

This Assignment and Acceptance (the “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.

 

1.         Assignor:

 

2. Assignee:

 

[and is an Affiliate/Approved Fund of [identify Bank] 1 ]
3. Borrower: Baxter Healthcare SA and Baxter World Trade SPRL

 

1   Select as applicable.


4.            Administrative Agent:   J.P. Morgan Europe Limited, as the administrative agent under the Credit Agreement
5.    Credit Agreement: Credit Agreement dated as of July 1, 2015 among Baxter Healthcare SA, Baxter World Trade SPRL, the Banks party thereto and J.P. Morgan Europe Limited, as Administrative Agent (the “ Credit Agreement ”)
6.    Assigned Interest:  

 

Aggregate Amount of
Commitment/Advances
for all Banks
   Amount of
Commitment/Advances
Assigned
     Percentage of
Commitment/Advances
Assigned 2
 
$                $                          
$                $                          
$                $                          

Effective Date:                  , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Guarantor and their affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

The terms set forth in this Assignment and Acceptance are hereby agreed to:

 

ASSIGNOR
[NAME OF ASSIGNOR]
By:  

 

Title:  
ASSIGNEE
[NAME OF ASSIGNEE]
By:  

 

Title:  

 

2   Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Banks thereunder.


[Consented to and Accepted:] 3
J.P. MORGAN EUROPE LIMITED, as Administrative Agent
By

 

Title:
[Consented to:] 4
BAXTER HEALTHCARE SA, as Borrower
By

 

Title:
BAXTER WORLD TRADE SPRL, as Borrower
By

 

Title:

 

3   If required by the terms of the Credit Agreement.
4   If required by the terms of the Credit Agreement and so long as no Event of Default has occurred and is continuing.


ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE

1. Representations and Warranties .

1.1 Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other document or instrument delivered in connection therewith, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other document or instrument delivered in connection therewith or any collateral thereunder, (iii) the financial condition of the Borrower, the Guarantor, any of their Subsidiaries or Affiliates or any other Person obligated in respect of the Credit Agreement or any other document or instrument delivered in connection therewith or (iv) the performance or observance by the Borrower, the Guarantor, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Credit Agreement or any other document or instrument delivered in connection therewith.

1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 11(f) of the Guaranty and any later financial statements delivered pursuant to Section 6.01(g)(ii) of the Credit Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank, and (v) if it is a non-U.S. Bank, attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank.


2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

3. General Provisions . This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.


EXHIBIT C-1

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Banks That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter Healthcare SA, Baxter World Trade SPRL and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the loan(s) (as well as any Note(s) evidencing such loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF BANK]
By:

 

Name:
Title:

Date:                  , 20[    ]


EXHIBIT C-2

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter Healthcare SA, Baxter World Trade SPRL and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing, and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:

 

Name:
Title:

Date:                  , 20[    ]


EXHIBIT C-3

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter Healthcare SA, Baxter World Trade SPRL and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:
Name:
Title:

Date:                  , 20[    ]


EXHIBIT C-4

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Banks That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of July 1, 2015 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Baxter Healthcare SA, Baxter World Trade SPRL and each lender from time to time party thereto.

Pursuant to the provisions of Section 5.15(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the loan(s) (as well as any Note(s) evidencing such loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such loan(s) (as well as any Note(s) evidencing such loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other loan document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF BANK]
By:
Name:
Title:

Date:                  , 20[    ]


Schedule 1.01

COMMITMENTS

 

Bank

   Amount of
Commitment
 

Breakdown on record with the Borrowers.

  
  

 

 

 

Total

200,000,000   
  

 

 

 

L/C COMMITMENTS

 

Bank

   Amount of
Commitment
 

Breakdown on record with the Borrowers.

  
  

 

 

 

Total

30,000,000   
  

 

 

 


Schedule 1.02

Lending Office

On file with Administrative Agent


Schedule 1.03

Existing Letters of Credit

None.


Schedule 5

PRICING MATRIX

The Facility Fee Rate, Applicable Margin, and the Letter of Credit Fee Rate, respectively, shall be determined in accordance with the table below (in basis points per annum) and the other provisions of this Schedule 5 on the basis of the publicly announced ratings (“ Credit Ratings ”) by Moody’s, S&P and Fitch on the Guarantor’s senior unsecured Debentures, the applicable rate to change when and as such Credit Ratings change.

 

     Level I    Level II    Level III    Level IV    Level V    Level VI

Reference Rating (Moody’s/S&P/Fitch)

   ³  A2 / A

/ A

   ³  A3 / A-

/ A-

   ³ Baa1 /

BBB+ /

BBB+

   ³ Baa2 /

BBB /

BBB

   ³ Baa3 /

BBB- /

BBB-

   < Baa3-

/ BBB- /

BBB-

Facility Fee Rate

   7.5    10.0    12.5    15.0    17.5    25.0

Applicable Margin

   80.0    90.0    100.0    110.0    120.0    150.0

Letter of Credit Fee Rate

   80.0    90.0    100.0    110.0    120.0    150.0

For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:

Fitch Rating ” means, at any time, the rating issued by Fitch Ratings Inc. or any successor, and then in effect with respect to the Guarantor’s senior unsecured long-term debt securities without third-party credit enhancement.

Level I Status ” exists at any date if, on such date, the Guarantor has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of A2, (ii) S&P Rating of A and (iii) Fitch Rating of A.

Level II Status ” exists at any date if, on such date, (a) the Guarantor has not qualified for Level I Status and (b) the Guarantor has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of A3, (ii) S&P Rating of A- and (iii) Fitch Rating of A-.

Level III Status ” exists at any date if, on such date, (a) the Guarantor has not qualified for Level I Status or Level II Status and (b) the Guarantor has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa1, (ii) S&P Rating of BBB+ and (iii) Fitch Rating of BBB+.


Level IV Status ” exists at any date if, on such date, (a) the Guarantor has not qualified for Level I Status, Level II Status or Level III Status and (b) the Guarantor has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa2, (ii) S&P Rating of BBB and (iii) Fitch Rating of BBB.

Level V Status ” exists at any date if, on such date, (a) the Guarantor has not qualified for Level I Status, Level II Status, Level III Status or Level IV Status and (b) the Guarantor has Ratings that are better than or equal to at least two of the following three Ratings: (i) Moody’s Rating of Baa3, (ii) S&P Rating of BBB- and (iii) Fitch Rating of BBB-.

Level VI Status ” exists at any date if, on such date, the Guarantor has not qualified for Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.

Moody’s Rating ” means, at any time, the rating issued by Moody’s Investors Service, Inc. or any successor, and then in effect with respect to the Guarantor’s senior unsecured long-term debt securities without third-party credit enhancement.

Rating ” means Moody’s Rating, S&P Rating or Fitch Rating.

S&P Rating ” means, at any time, the rating issued by Standard and Poor’s Financial Services, LLC or any successor, and then in effect with respect to the Guarantor’s senior unsecured long-term debt securities without third-party credit enhancement.

Status ” means Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status or Level VI Status.

The Facility Fee Rate, Applicable Margin and Letter of Credit Fee Rate shall be determined in accordance with the foregoing table based on the Guarantor’s Status as determined from its then-current Ratings; provided that if at any time there is a split in the Ratings issued by Moody’s, S&P and Fitch, then notwithstanding the foregoing, Status shall be based upon the two Ratings upon which the highest Status applies (with Level I Status being the highest and Level VI Status being the lowest), unless (1) the lowest Rating is more than one tier lower than the other two Ratings, in which case Status shall be one level lower than the otherwise applicable Status and (2) the Ratings issued by Moody’s, S&P and Fitch are all in different tiers, in which case Status shall be determined by the second highest of the three Ratings. The credit rating in effect on any date for the purposes of this Schedule is that in effect at the close of business on such date. Subject to the following sentence, until January 4, 2016, Status shall be deemed to be the lower of Level III Status and the Status otherwise applicable pursuant to the above. If the Guarantor does not have at least two of the three Ratings, Level VI Status shall apply.

Exhibit 10.6

Baxter International Inc.

Equity Plan

Incentive Committee Grant

July 1, 2015

 

1. Purpose

This Equity Plan (the “Plan”) has been adopted by the Incentive Committee (the “ Incentive Committee ”) of the Board of Directors (the “ Board ”) of Baxter International Inc. (“ Baxter ”), effective as of July 1, 2015, pursuant to authority granted from time to time by the Compensation Committee (the “ Committee ”) of the Board.

For avoidance of doubt, all grants made under this Plan shall be made on or after the date on which Baxter distributes the stock of Baxalta Incorporated, and shall not be subject to adjustment in the manner described in the Employee Matters Agreement between Baxter and Baxalta Incorporated.

 

2. Participants

Participants in this Plan (each a “ Participant ”) shall be employees of Baxter or its subsidiaries (the “ Company ”) to whom the Incentive Committee makes awards of equity under this Plan.

 

3. Awards

Each grant of equity (an “ Award ”) shall be made pursuant to and for the purposes stated in the Company incentive compensation programs or plans (the “ Programs ”) designated by the Incentive Committee. Unless otherwise indicated, terms defined in the Programs shall have the same meaning in this Plan.

This Plan provides terms that apply to awards of stock options (“ Options ”) and restricted stock units (“RSUs”). An award to any given Participant may be only Options, only RSUs, or any combination of Awards available under the Programs.

Participants receive grant communication letters notifying them of their Awards. The Programs and this Plan provide the definitive terms of each Award; provided that a grant communication letter may include alternative terms with respect to vesting, in which case the vesting terms in the grant communication letter shall govern.

The grant date for an Award shall be the date of approval thereof by the Incentive Committee, or for eligible French employees, as soon thereafter as practicable pursuant to applicable French law as provided in the attached French Addendum, which shall govern such grants (the “Grant Date”).

The purchase price for each share of Common Stock subject to an Option shall be the Fair Market Value of a share of Common Stock on the Grant Date. Options are not intended to qualify as an Incentive Stock Option within the meaning of section 422 of the United States Internal Revenue Code, as amended (the “Code”).


Baxter has not selected any country as its home member state under the European Union Directive 2003/71/EC, and the grant of Awards pursuant to this Plan is simultaneous.

 

4. Options

4.1. Except for Options granted to employees of the Company’s subsidiaries in France, Options shall become exercisable as follows: (i) one-third on the first anniversary of the Grant Date, (ii) one-third on the second anniversary of the Grant Date, and (iii) the remainder on the third anniversary of the Grant Date. Options granted to employees of the Company’s subsidiaries in France shall become exercisable on the fourth anniversary of the Grant Date. If Options would become exercisable on a date that is not a business day, they will become exercisable on the next business day. A business day is any day on which the Company’s Common Stock is traded on the New York Stock Exchange. After Options become exercisable (in each case, in whole or in part) and until they expire, the Options may be exercised in whole or in part in the manner specified by the Committee. Under no circumstances may Options be exercised after they have expired. Shares of Common Stock may be used to pay the purchase price for shares of Common Stock to be acquired upon exercise of Options or fulfill any tax withholding obligation, subject to any requirements or restrictions specified by the Committee.

4.2. If a Participant’s employment with the Company terminates before the Participant’s Options becomes exercisable, the Options will expire when the Participant’s employment with the Company terminates, except (i) in connection with a Qualifying Retirement or death or disability (each as outlined below) or (ii) if the Participant is rehired by the Company within ninety days of termination, in which case the Participant shall be construed to have been continuously employed by the Company for purposes of vesting and exercise.

4.3. If a Participant’s employment with the Company terminates after the Participant’s Options become exercisable, the Options will not expire immediately but will remain exercisable. Subject to Section 4.6, and except in the event of a Qualifying Retirement (as provided in Section 4.4), the Options will expire ninety days after the Participant’s employment with the Company terminates. If the Participant dies or becomes disabled during the ninety-day period, the Options will expire on the fifth anniversary of the termination date.

4.4. If the employment of a Participant who is at least 65 years of age, or at least 55 years of age with at least 10 years of employment with the Company, is terminated other than for Cause or by reason of the Participant’s death or disability (a “ Qualifying Retirement ”) then (i) if the date of such termination is after the calendar year of the Grant Date, the Options shall continue to vest as provided in Section 4.1, or (ii) if the date of such termination is in the calendar year of the Grant Date, a portion of the Options shall continue to vest as provided in (i), which portion shall be determined as follows: (# shares covered by Option award) * (# of months worked in that year, rounded to nearest whole month) / 12. Subject to Section 4.6, the Participant’s Options (whether vesting pursuant to (i) or (ii) or previously vested) will expire on the fifth anniversary of the termination date.

4.5. If the employment of a Participant is terminated due to death or disability, then (i) if the date of such termination is after the calendar year of the Grant Date, the Options shall vest immediately, or (ii) if the date of such termination is in the calendar year of the Grant Date,

 

2


a portion of the Options shall vest immediately, which portion shall be determined as follows: (# shares covered by Option award) * (# of months worked in that year, rounded to nearest whole month) / 12. Subject to Section 4.6, the Participant’s Options (whether vesting pursuant to (i) or (ii) or previously vested) will expire on the fifth anniversary of the termination date.

4.6. Options that have not previously expired will expire at the close of business on the tenth anniversary of the Grant Date; provided, however, that Options granted to employees residing in Switzerland on the Grant Date shall expire on the eleventh anniversary of the Grant Date. If Options would expire on a date that is not a business day, they will expire at the close of business on the last business day preceding that date. A business day is any day on which the Common Stock is traded on the New York Stock Exchange.

4.7. Except as the Committee may otherwise provide, Options may only be exercised by the Participant, the Participant’s legal representative, or a person to whom the Participant’s rights in the Options are transferred by will or the laws of descent and distribution.

4.8. A transfer of employment within the Company will not constitute a termination of employment within the meaning of the Plan.

4.9. A transfer of employment to a company that assumes an Option or issues a substitute option in a transaction to which Section 424 of the Code applies will not constitute a termination of employment within the meaning of the Plan.

4.10. Except to the extent that it would cause the Option to be subject to Section 409A of the Code, the Committee may, in its sole discretion and without receiving permission from any Participant, substitute stock appreciation rights (“SARs”) for any or all outstanding Options. Upon the grant of substitute SARs, the related Options replaced by the substitute SARs shall be cancelled. The grant price of the substitute SARs shall be equal to the Option Price of the related Options, the term of the substitute SARs shall not exceed the term of the related Options, and the terms and conditions applicable to the substitute SARs shall otherwise be substantially the same as those applicable to the related Options replaced by the substitute SARs. Upon exercise, the SARs will be settled in Common Stock.

 

5. Restricted Stock Units

5.1. RSUs are subject to being earned and vested on the third anniversary of the Grant Date (as applicable, the “ Vesting Date ”). If RSUs would become earned and vested on a date that is not a business day, the next business day shall be the Vesting Date. The Company will deliver or otherwise make available to the Participant within 2 1 / 2 months following the applicable Vesting Date one share of Common Stock for each RSU that vests.

5.2. If a Participant’s employment with the Company terminates before an RSU Vesting Date, the RSU will be forfeited when the Participant’s employment with the Company terminates, except (i) in connection with a Qualifying Retirement or death or disability (each as outlined below), or (ii) if the Participant is rehired by the Company within ninety days of termination, in which case the Participant shall be construed to have been continuously employed by the Company for purposes of vesting and payout.

 

3


5.3. If the employment of a Participant terminates in a Qualifying Retirement then (i) if the date of such termination is after the calendar year of the Grant Date, the RSUs will remain eligible for payout on the terms provided in Section 5.1, or (ii) if the date of such termination is in the calendar year of the Grant Date a portion of the RSUs shall remain eligible for payout on the terms provided in Section 5.1, which portion shall be determined as follows: (# RSUs awarded) * (# of months worked in that year, rounded to nearest whole month) / 12.

5.4. If the employment with the Company of a Participant is terminated due to death or disability, the RSUs shall vest as follows: (i) if the date of such termination is after the calendar year of the Grant Date, all the RSUs shall pay out within sixty days, or (ii) if the date of such termination is in the calendar year of the Grant Date a portion of the RSUs shall pay out as provided in (i), which portion shall be determined as follows: (# RSUs awarded) * (# of months worked in that year, rounded to nearest whole month) / 12.

5.5. The RSUs shall not be transferable and may not be sold, assigned, pledged, hypothecated or otherwise encumbered.

5.6. A transfer of employment within the Company will not constitute a termination of employment within the meaning of the Plan.

5.7. Until the shares of Common Stock have been delivered or otherwise made available as provided in Section 5.1, the Participant shall not be treated as a shareholder as to those shares of Common Stock relating to the RSUs. Notwithstanding the foregoing, the Participant shall be permitted to receive additional RSUs with respect to the RSUs based upon the dividends and distributions paid on shares of Common Stock to the same extent as if each RSU were a share of Common Stock, which additional RSUs shall be delivered or made available at the same time and to the same extent as the RSUs to which they relate or as otherwise determined by the Company.

 

6. Change in Control

Except as otherwise provided in the last sentence of this Section 6, notwithstanding any other provision of the Programs or this Plan (and in lieu of vesting at the times otherwise provided in the Programs), if the termination of employment of a Participant occurs upon or within twenty-four (24) months following a Change in Control by reason of (a) termination by the Company for reasons other than for Cause or (b) termination by the Participant for Good Reason, then all RSUs and Options shall become immediately vested and all Options immediately exercisable. The provisions of this Section 6 shall not apply to any Award granted under the Baxter International Inc. 2015 Incentive Plan, or any subsequent Program adopted by Baxter that includes a provision dealing with the effect of a Change in Control, and the treatment of Awards granted under any such Program upon a Change in Control shall be governed exclusively by the terms of such Program.

 

7. Additional Definitions

For purposes of the Plan, the following capitalized terms shall have the meanings provided below.

 

4


Affiliate ” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended.

Cause ” means (i) the willful and continued failure by the Participant to substantially perform his duties with the Company that has not been cured within 30 days after written demand for substantial performance is delivered by the Company, which demand specifically identifies the manner in which the Participant has not substantially performed (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness), (ii) the willful engaging by the Participant in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (iii) the engaging by the Participant in egregious misconduct involving serious moral turpitude, determined in the reasonable judgment of the Committee. For purposes hereof, no act, or failure to act, on the Participant’s part shall be deemed “willful” unless done, or omitted to be done, by the Participant not in good faith and without reasonable belief that such action was in the best interest of the Company. Notwithstanding the foregoing, if a Participant is a party to a Change in Control Agreement, “Cause” with respect to such Participant shall have the meaning given to such term in the Change in Control Agreement.

Change in Control ” means the first to occur of any of the following: (i) any Person is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Baxter (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates) representing 30% or more of the combined voting power of Baxter’s then outstanding securities, excluding any Person who becomes such a beneficial owner in connection with a merger or consolidation of Baxter or any direct or indirect subsidiary of Baxter with any other corporation immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of (A) any parent of Baxter or the entity surviving such merger or consolidation or (B) if there is no such parent, of Baxter or such surviving entity; (ii) the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the Grant Date, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of Baxter) whose appointment or election by the Board or nomination for election by Baxter’s shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Grant Date or whose appointment, election or nomination for election was previously so approved or recommended: (iii) there is consummated a merger or consolidation of Baxter or any direct or indirect subsidiary of Baxter with any other corporation or other entity, other than a merger or consolidation immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of (A) any parent of Baxter or the entity surviving such merger or consolidation or (B) if there is no such parent, of Baxter or such surviving entity: or (iv) the shareholders of Baxter approve a plan of complete liquidation or dissolution of Baxter or there is consummated an agreement for the sale or disposition by Baxter of all or substantially all of Baxter’s assets, other than a sale or disposition by Baxter of all or substantially all of Baxter’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of (A) any parent of Baxter or of the entity to which such assets are sold or disposed or (B) if there is no such parent, of Baxter or such entity.

 

5


Change in Control Agreement ” means an employment agreement, change in control agreement or plan, severance agreement or plan, or other agreement between the Company and a Participant or Company plan covering a Participant that provides for benefits upon termination for good reason or cause in connection with a change in control of Baxter and that has been approved by the Board or the Committee.

Good Reason ” means the occurrence (without the Participant’s express written consent) of any of the following which occur on or after a Change in Control: (i) reduction by the Company in the Participant’s annual base salary as in effect on the Grant Date or as the same may be increased from time to time; (ii) the relocation of the Participant’s principal place of employment to a location more than fifty (50) miles from the Participant’s principal place of employment immediately prior to the Change in Control or the Company’s requiring the Participant to be based anywhere other than such principal place of employment (or permitted relocation thereof) except for required travel on the Company’s business to an extent substantially consistent with the Participant’s business travel obligations as in effect immediately prior to the Change in Control; or (iii) the failure by the Company to pay to the Participant any portion of the Participant’s current compensation or to pay to the Participant any portion of an installment of deferred compensation under any deferred compensation program of the Company, within seven (7) days of the date such compensation is due. Notwithstanding the foregoing, if a Participant is a party to a Change in Control Agreement, “Good Reason” with respect to such Participant shall have the meaning given to such term in the Change in Control Agreement.

Person ” shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) Baxter or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of Baxter or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the shareholders of Baxter in substantially the same proportions as their ownership of stock of Baxter.

 

8. Program Controls

Except as specifically provided in the Plan, in the event of any inconsistency between the Plan and the Programs, the Programs will control, but only to the extent such provisions will not violate the provisions of section 409A of the Code.

 

6


BAXTER INTERNATIONAL INC.

French Addendum

 

1. PURPOSES OF THIS ADDENDUM

This Addendum (the “ French Addendum ”) to the Baxter International Inc. Quarterly Equity Plan, Incentive Committee Grant (the “Plan”) provides the terms for Options granted to Eligible French Participants (as defined below).

Except as otherwise expressly provided in this French Addendum, the terms of awards shall be as provided in and governed by the Plan. Terms not otherwise defined herein shall have the meanings provided in the Plan.

Awards granted under this French Addendum are restricted to Options satisfying the conditions set forth in the French Commercial Code (articles L.225-177 to L.225-I85) and such Options are intended to be eligible for a tax-favored regime.

 

2. PARTICIPANTS

Options may only be granted under this French Addendum to employees (“ Eligible French Participants ”) of companies in which the Company holds at least ten percent (10%) of the voting rights or equity, directly or indirectly. No individual in France holding more than ten percent of the issued equity of the Company can be an Eligible French Participant.

 

3. AWARDS

 

  3.1. Grant of Options

No Options may be granted under this French Addendum: (a) before the end of a period of twenty (20) trading days following (i) a dividend record date for any dividend or (ii) an agreement by the shareholders of the Company to increase the issued share capital of the Company; (b) within a period of ten (10) trading days before and after the publication of consolidated accounting results of the Company (e.g., the filing of an Annual Report on Form 10-K); or (c) within a period beginning with the date upon which the Company’s executive officers become aware of any nonpublic information that, if it were to become publicly known, would reasonably be expected to affect the value of the Company’s shares of Common Stock and ending ten (10) trading days after that information has been publicized.

The Grant Date shall be the date as of which the Committee approves grants to Eligible French Participants or as soon thereafter as possible, ensuring that the above restrictions are respected. The acquisition price of shares subject to Option (the “ Option Price ”) shall be established on the Grant Date.

 

  3.2. Option Price

The Option Price shall be the greatest of (a) the Fair Market Value on the Grant Date; (b) eighty percent (80%) of the average opening price of a share of Common Stock over the twenty (20)


trading days preceding Grant Date; and (c) if treasury shares are used to satisfy exercise of the Option, eighty percent (80%) percent of the average repurchase price per share paid by the Company for such treasury shares.

 

  3.3. Shares Available for Option

In no event shall the number of shares of Common Stock subject to outstanding unexercised Options granted pursuant to this French Addendum give right to subscribe shares exceeding one-third (1/3) of the Company’s share capital.

 

  3.4. Options Giving Right to Purchase Previously Issued Shares

If an Option provides a right to purchase previously issued shares, the Company shall procure sufficient shares to satisfy the exercise of such Option at least one day prior to the Participant’s having the right to exercise such Option.

 

  3.5. Characteristics of Shares

Shares issued pursuant to Options shall be non-bearer shares or shares held in an identifiable account.

 

  3.6. Substitution of SARs for Options

Neither SARs nor any other incentive may be substituted for Options granted pursuant to this French Addendum.

 

  3.7. Adjustment to Option Price

The number of Options and the Option Price for grants made pursuant to this French Addendum may be adjusted in connection with changes in capital operations described in article L.225-181 of the French Commercial Code so that economic rights are maintained.

 

4. VESTING AND EXERCISE OF OPTIONS

 

  4.1. Vesting

Options granted pursuant to this French Addendum shall first become exercisable on the fourth (4 th ) anniversary of the Grant Date.

 

  4.2. Non-Transferability of Options — Death of the Participant

Options granted pursuant to this French Addendum shall be non-transferable and can only be exercised by the Eligible French Participant, or, in the event of the Eligible French Participant’s death, the heirs may exercise the Options (where previously vested or not) within six months of the date of the Eligible French Participant’s death.

 

8

Exhibit 99.1

Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Financial Statements

On July 1, 2015, Baxter International Inc. (“Baxter” or the “company”) completed the previously announced distribution of 80.5% of the outstanding common stock of Baxalta Incorporated (“Baxalta”) to Baxter’s shareholders (the “Distribution”). Baxter retained a 19.5% ownership stake in Baxalta immediately following the distribution.

The following unaudited pro forma condensed consolidated statements of earnings of Baxter for the three months ended March 31, 2015 and for each of the years ended December 31, 2014, 2013, and 2012 are presented as if the Distribution had occurred on January 1, 2012. The following unaudited pro forma condensed consolidated balance sheet of Baxter as of March 31, 2015 is presented as if the Distribution and related events had occurred on March 31, 2015.

The statements have been derived from historical financial statements prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”), are presented based on information currently available, are intended for informational purposes only, and do not purport to represent what Baxter’s financial position and results of operations actually would have been had the Distribution and related events occurred on the dates indicated, or to project Baxter’s financial performance for any future period. Specifically, the statements do not include adjustments related to special items, the effects of transition services arrangements between Baxter and Baxalta, reductions in interest expense as a result of repayment or redemption of Baxter’s long-term debt or the impact of any future action Baxter may take to align its cost structure with the remaining Baxter business. Beginning in the third quarter of 2015, Baxalta’s historical financial results for periods prior to the Distribution will be reflected in Baxter’s consolidated financial statements as discontinued operations.

The unaudited pro forma condensed consolidated financial statements and the accompanying notes should be read in conjunction with (i) the audited consolidated GAAP financial statements and accompanying notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in Baxter’s Form 10-K for the years ended December 31, 2014, 2013, and 2012 and (ii) the unaudited condensed consolidated GAAP financial statements and accompanying notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in Baxter’s Form 10-Q for the three months ended March 31, 2015.


Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Statement of Earnings

Three Months Ended March 31, 2015

(dollars and shares in millions except per share data)

 

     Baxter
Historical (A)
    Baxalta
Separation (B)
    Baxter
Continuing
Pro Forma
 

Net sales

     $3,764        $(1,361     $2,403   

Cost of sales

     1,963        (574     1,389   
  

 

 

   

 

 

   

 

 

 

Gross margin

  1,801      (787   1,014   
  

 

 

   

 

 

   

 

 

 

Marketing and administrative expenses

  1,015      (231   784   

Research and development expenses

  300      (157   143   

Net interest expense

  30      —        30   

Other (income) expense, net

  (74   (12   (86
  

 

 

   

 

 

   

 

 

 

Income from continuing operations before income taxes

  530      (387   143   

Income tax expense

  110      (97   13   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations

  $   420      $   (290   $   130   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations per common share

Basic

  $  0.77      $  0.24   

Diluted

  $  0.76      $  0.24   

Weighted-average number of common shares outstanding

Basic

  543      543   

Diluted

  548      548   

See accompanying notes to the unaudited pro forma condensed consolidated financial statements.


Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Statement of Earnings

Year Ended December 31, 2014

(dollars and shares in millions except per share data)

 

     Baxter
Historical (A)
     Baxalta
Separation (B)
    Baxter
Continuing
Pro Forma
 

Net sales

     $16,671         $(5,952     $10,719   

Cost of sales

     8,514         (2,475     6,039   
  

 

 

    

 

 

   

 

 

 

Gross margin

  8,157      (3,477   4,680   
  

 

 

    

 

 

   

 

 

 

Marketing and administrative expenses

  4,029      (714   3,315   

Research and development expenses

  1,421      (811   610   

Net interest expense

  145      —        145   

Other (income) expense, net

  123      (102   21   
  

 

 

    

 

 

   

 

 

 

Income from continuing operations before income taxes

  2,439      (1,850   589   

Income tax expense

  493      (439   54   
  

 

 

    

 

 

   

 

 

 

Income from continuing operations

  $  1,946      $(1,411   $     535   
  

 

 

    

 

 

   

 

 

 

Income from continuing operations per common share

Basic

  $    3.59      $    0.99   

Diluted

  $    3.56      $    0.98   

Weighted-average number of common shares outstanding

Basic

  542      542   

Diluted

  547      547   

See accompanying notes to the unaudited pro forma condensed consolidated financial statements.


Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Statement of Earnings

Year Ended December 31, 2013

(dollars and shares in millions except per share data)

 

     Baxter
Historical (A)
    Baxalta
Separation (B)
    Baxter
Continuing
Pro Forma
 

Net sales

     $14,967        $(5,554     $9,413   

Cost of sales

     7,495        (2,331     5,164   
  

 

 

   

 

 

   

 

 

 

Gross margin

  7,472      (3,223   4,249   
  

 

 

   

 

 

   

 

 

 

Marketing and administrative expenses

  3,642      (558   3,084   

Research and development expenses

  1,165      (583   582   

Net interest expense

  128      —        128   

Other (income) expense, net

  (9   3      (6
  

 

 

   

 

 

   

 

 

 

Income from continuing operations before income taxes

  2,546      (2,085   461   

Income tax expense

  534      (456   78   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations

  $  2,012      $(1,629   $   383   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations per common share

Basic

  $    3.70      $  0.71   

Diluted

  $    3.66      $  0.70   

Weighted-average number of common shares outstanding

Basic

  543      543   

Diluted

  549      549   

See accompanying notes to the unaudited pro forma condensed consolidated financial statements.


Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Statement of Earnings

Year Ended December 31, 2012

(dollars and shares in millions except per share data)

 

     Baxter
Historical (A)
    Baxalta
Separation (B)
    Baxter
Continuing
Pro Forma
 

Net sales

     $13,936        $(5,310     $8,626   

Cost of sales

     6,802        (2,249     4,553   
  

 

 

   

 

 

   

 

 

 

Gross margin

  7,134      (3,061   4,073   
  

 

 

   

 

 

   

 

 

 

Marketing and administrative expenses

  3,283      (431   2,852   

Research and development expenses

  1,081      (569   512   

Net interest expense

  87      —        87   

Other (income) expense, net

  (155   (15   (170
  

 

 

   

 

 

   

 

 

 

Income from continuing operations before income taxes

  2,838      (2,046   792   

Income tax expense

  555      (495   60   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations

  $  2,283      $(1,551   $   732   
  

 

 

   

 

 

   

 

 

 

Income from continuing operations per common share

Basic

  $    4.14      $  1.33   

Diluted

  $    4.11      $  1.32   

Weighted-average number of common shares outstanding

Basic

  551      551   

Diluted

  556      556   

See accompanying notes to the unaudited pro forma condensed consolidated financial statements.


Baxter International Inc.

Unaudited Pro Forma Condensed Consolidated Balance Sheet

As of March 31, 2015

(dollars in millions)

 

     Baxter
Historical (A)
    Baxalta
Separation (C)
    Other
Adjustments
   

Notes

   Baxter
Continuing
Pro Forma
 

Current assets

           

Cash and equivalents

     $  2,530        $    —          $ 1,914      (D)      $  4,444   

Accounts and other current receivables, net

     2,599        (928     —             1,671   

Inventories

     3,501        (1,918     —             1,583   

Prepaid expenses and other

     1,104        (387     —             717   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total current assets

  9,734      (3,233   1,914      8,415   

Property, plant and equipment, net

  8,492      (4,304   —        4,188   

Other assets

Goodwill

  3,694      (1,003   —        2,691   

Other intangible assets, net

  2,068      (602   —        1,466   

Investment in Baxalta common stock

  —        —        4,292    (E)   4,292   

Other

  873      (428   —        445   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total other assets

  6,635      (2,033   4,292      8,894   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total assets

  $24,861      $(9,570   $ 6,206      $21,497   
  

 

 

   

 

 

   

 

 

      

 

 

 

Current liabilities

Short-term debt

  $  2,151      $    —        $(1,236 (D)   $     915   

Current maturities of long-term debt and lease obligations

  174      (1   —        173   

Accounts payable and accrued liabilities

  3,749      (1,233   —        2,516   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total current liabilities

  6,074      (1,234   (1,236   3,604   

Long-term debt and lease obligations

  7,680      (317   —        7,363   

Other long-term liabilities

  3,819      (1,483   —        2,336   

Commitments and contingencies

Equity

Common stock, $1 par value, authorized 2,000,000,000 shares, issued 683,494,944 shares

  683      —        —        683   

Common stock in treasury, at cost, 139,644,913 shares

  (7,890   —        —        (7,890

Additional contributed capital

  5,822      —        —        5,822   

Retained earnings

  13,352      (7,467   4,424    (D)(E)   10,309   

Accumulated other comprehensive (loss) income

  (4,709   931      3,018    (E)   (760
  

 

 

   

 

 

   

 

 

      

 

 

 

Total Baxter shareholders’ equity

  7,258      (6,536   7,442      8,164   

Noncontrolling interests

  30      —        —        30   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total equity

  7,288      (6,536   7,442      8,194   
  

 

 

   

 

 

   

 

 

      

 

 

 

Total liabilities and equity

  $24,861      $(9,570   $ 6,206      $21,497   
  

 

 

   

 

 

   

 

 

      

 

 

 

See accompanying notes to the unaudited pro forma condensed consolidated financial statements.


Baxter International Inc.

Notes to Unaudited Pro Forma Condensed Consolidated Financial Statements

(A) Reflects Baxter’s historical GAAP financial statements and does not reflect any adjustments related to the Distribution.

(B) Reflects the revenues and expenses directly associated with the results of operations of Baxalta and was derived from the annual and interim combined GAAP financial statements included in Baxalta’s Registration Statement on Form 10 (File No. 001-36782) (the “Form 10”), adjusted to exclude previously allocated corporate overhead costs and to include separation costs that are directly related to the separation of Baxalta from Baxter. Separation costs included in this column are $106 million and $155 million for the three months ended March 31, 2015 and the year ended December 31, 2014, respectively.

(C) Reflects the assets and liabilities of Baxalta and was derived from the unaudited combined GAAP balance sheet included in the Form 10, adjusted for certain assets and liabilities to give effect to the Distribution. Adjustments also include the elimination of goodwill attributed to the Baxter BioScience segment remaining on Baxter’s unaudited condensed consolidated balance sheet as of March 31, 2015.

(D) Reflects a $4.0 billion cash distribution from Baxalta, net of $850 million of cash that was contributed to Baxalta in connection with the formation of various Baxalta entities and the $1.2 billion repayment of Baxter’s outstanding short-term debt. This does not include reductions in indebtedness associated with Baxter’s ongoing debt tender offers.

(E) After giving effect to the Distribution, Baxter holds 131,902,719 shares of Baxalta’s common stock with an estimated cost basis of $1.3 billion. For purposes of the unaudited pro forma condensed consolidated balance sheet, the value of the company’s investment in Baxalta was calculated using a stock price of $32.54 per share, which represents the mid-point price for Baxalta’s common stock on July 1, 2015. The difference between the cost basis of the investment and the fair value of the investment as of July 1, 2015 is recorded as a component of accumulated other comprehensive (loss) income in the unaudited pro forma condensed consolidated balance sheet.