Form of Note, dated March 1, 2021 between Halozyme Therapeutics, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee
Exhibit 4.2
EXHIBIT A
FORM OF NOTE
[Insert Global Note Legend, if applicable]
[Insert Restricted Note Legend, if applicable]
[Insert Non-Affiliate Legend]
HALOZYME THERAPEUTICS, INC.
0.25% Convertible Senior Note due 2027
CUSIP No.: [___][Insert for a “restricted” CUSIP number: *] Certificate No. [___]
ISIN No.: [___][Insert for a “restricted” ISIN number: *]
Halozyme Therapeutics, Inc., a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [___] dollars ($[___]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]† on March 1, 2027 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Dates: March 1 and September 1 of each year, commencing on [date].
Regular Record Dates: February 15 and August 15.
Additional provisions of this Note are set forth on the other side of this Note.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
| * | This Note will be deemed to be identified by CUSIP No. [___] and ISIN No. [___] from and after such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture, written notice to the Trustee of the deemed removal of the Restricted Note Legend affixed to this Note. |
| † | Insert bracketed language for Global Notes only. |
A-1
IN WITNESS WHEREOF, Halozyme Therapeutics, Inc. has caused this instrument to be duly executed as of the date set forth below.
| HALOZYME THERAPEUTICS, INC. | ||||||||
| Date: | By: | |||||||
| Name: | ||||||||
| Title: | ||||||||
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon Trust Company, N.A., as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
| Date: | By: | |||||||
| Authorized Signatory |
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HALOZYME THERAPEUTICS, INC.
0.25% Convertible Senior Note due 2027
This Note is one of a duly authorized issue of notes of Halozyme Therapeutics, Inc., a Delaware corporation (the “Company”), designated as its 0.25% Convertible Senior Notes due 2027 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of March 1, 2021 (as the same may be amended from time to time, the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.
The Indenture sets forth the rights and obligations of the Company, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.
1. Interest. This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest on this Note will begin to accrue from, and including, [date].
2. Maturity. This Note will mature on March 1, 2027, unless earlier repurchased, redeemed or converted.
3. Method of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.
4. Persons Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.
5. Denominations; Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials.
6. Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. If a Fundamental Change occurs, then each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.
7. Right of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.03 of the Indenture.
8. Conversion. The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in
A-4
Article 5 of the Indenture.
9. When the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a Business Combination Event.
10. Defaults and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture.
11. Amendments, Supplements and Waivers. The Company and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Article 8 of the Indenture.
12. No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.
13. Authentication. No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) signs the certificate of authentication of such Note by manual, facsimile or electronic signature.
14. Abbreviations. Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).
15. Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
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To request a copy of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:
Halozyme Therapeutics, Inc.
11388 Sorrento Valley Road
San Diego, California 92121
Attention: Chief Financial Officer
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[___]
The following exchanges, transfers or cancellations of this Global Note have been made:
| Date | Amount of Increase (Decrease) in Principal Amount of this Global Note | Principal Amount of this Global Note After Such Increase (Decrease) | Signature of Authorized Signatory of Trustee | |||
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| * | Insert for Global Notes only. |
A-7
CONVERSION NOTICE
HALOZYME THERAPEUTICS, INC.
0.25% Convertible Senior Notes due 2027
Subject to the terms of the Indenture, by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to convert (check one):
| ☐ | the entire principal amount of |
| ☐ | $ * aggregate principal amount of |
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.
| Date: | ||||||||
| (Legal Name of Holder) | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Signature Guaranteed: | ||||||||
| Participant in a Recognized Signature | ||||||||
| Guarantee Medallion Program | ||||||||
| By: | ||||||||
| Authorized Signatory | ||||||||
| * | Must be an Authorized Denomination. |
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FUNDAMENTAL CHANGE REPURCHASE NOTICE
HALOZYME THERAPEUTICS, INC.
0.25% Convertible Senior Notes due 2027
Subject to the terms of the Indenture, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental Change Repurchase Right with respect to (check one):
| ☐ | the entire principal amount of |
| ☐ | $ * aggregate principal amount of |
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.
| Date: | ||||||||
| (Legal Name of Holder) | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Signature Guaranteed: | ||||||||
| Participant in a Recognized Signature | ||||||||
| Guarantee Medallion Program | ||||||||
| By: | ||||||||
| Authorized Signatory | ||||||||
| * | Must be an Authorized Denomination. |
A-9
ASSIGNMENT FORM
HALOZYME THERAPEUTICS, INC.
0.25% Convertible Senior Notes due 2027
Subject to the terms of the Indenture, the undersigned Holder of the within Note assigns to:
| Name: | ||||
| Address: | ||||
| Social security or tax identification number: | ||||
the within Note and all rights thereunder irrevocably appoints:
as agent to transfer the within Note on the books of the Company. The agent may substitute another to act for him/her.
| Date: | ||||||||
| (Legal Name of Holder) | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Signature Guaranteed: | ||||||||
| Participant in a Recognized Signature | ||||||||
| Guarantee Medallion Program | ||||||||
| By: | ||||||||
| Authorized Signatory | ||||||||
TRANSFEROR ACKNOWLEDGMENT
If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):
| 1. ☐ | Such Transfer is being made to the Company or a Subsidiary of the Company. |
| 2. ☐ | Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer. |
| 3. ☐ | Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A. If this item is checked, then the transferee must complete and execute the acknowledgment contained on the next page. |
| 4. ☐ | Such Transfer is being made pursuant to, and in accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities Act). |
| Dated: |
| (Legal Name of Holder) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Signature Guaranteed: | ||
| (Participant in a Recognized Signature | ||
| Guarantee Medallion Program) | ||
| By: | ||
| Authorized Signatory | ||
TRANSFEREE ACKNOWLEDGMENT
The undersigned represents that it is purchasing the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion, and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within Note on the exemption from the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A.
| Dated: |
| (Name of Transferee) | ||
| By: | ||
| Name: | ||
| Title: | ||
