Supplemental Indenture, dated as of January 6, 2020, to the indenture, dated as of June 10, 2016, between the Company and the Trustee
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of January 6, 2020 (this “Supplemental Indenture”), by and between THE MEDICINES COMPANY, a Delaware corporation, as issuer (the “Company”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the “Trustee”), supplements the Indenture, dated as of June 10, 2016 (the “Indenture”), between the Company and the Trustee.
RECITALS OF THE COMPANY
WHEREAS, pursuant to the Indenture, the Company issued $402,500,000 aggregate principal amount of 2.75% Convertible Senior Notes due 2023 (the “Notes”);
WHEREAS, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 23, 2019, among Novartis AG, a company organized under the laws of Switzerland (“Parent”), Medusa Merger Corporation, a Delaware corporation and an indirect, wholly owned subsidiary of Parent (“Merger Sub”), and the Company, Merger Sub has offered to purchase any and all outstanding shares of Company Common Stock (as defined in the Merger Agreement) (“Common Stock”) at a price per share of $85.00 in cash, without interest and subject to any withholding of taxes required by applicable law (the “Offer”);
WHEREAS, following the consummation of the Offer, pursuant to the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and an indirect, wholly owned subsidiary of Parent (the “Merger”);
WHEREAS, pursuant to the Merger Agreement, at the Effective Time (as defined in the Merger Agreement) (the “Effective Time”), each share of Common Stock outstanding immediately prior to the Effective Time (other than (i) shares of Common Stock that at the Effective Time are owned by the Company, Parent, Merger Sub, any other subsidiary of Parent or any subsidiary of the Company or that are held in the Company’s treasury and (ii) shares of Common Stock that are outstanding immediately prior to the Effective Time and that are held by a Company stockholder who properly demands and perfects appraisal rights under Delaware law) will be converted into the right to receive $85.00 in cash, without interest and subject to any withholding of taxes required by applicable law;
WHEREAS, pursuant to Section 14.07(a) of the Indenture, the Merger constitutes a Share Exchange Event, and the Indenture provides the Company shall execute with the Trustee a supplemental indenture providing that from and after the Effective Time the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the units of Reference Property;
WHEREAS, pursuant to the terms of the Merger Agreement and Section 14.07(a) of the Indenture, each unit of Reference Property consists of $85.00 in cash;
WHEREAS, Section 10.01(j) of the Indenture provides that the Company and the Trustee may enter into a supplemental indenture, without prior notice to or the consent of the Holders of any of the Notes at the time outstanding, in connection with any Share Exchange Event to provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02 of the Indenture, and to make related changes to the terms of the Notes to the extent expressly required by the Indenture;
WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture and has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel; and
WHEREAS, all conditions precedent provided for in the Indenture relating to the execution of this Supplemental Indenture have been complied with.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and proportionate benefit of the Holders as follows:
Section 1.01 Definitions. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Indenture.
Section 2.01 Conversion Right. Pursuant to Section 14.07(a) of the Indenture, from and after the Effective Time, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes solely into a number of units of Reference Property in an aggregate amount equal to the Conversion Rate in effect on the Conversion Date (subject to any adjustments under Section 14.03 of the Indenture) multiplied by the Stock Price paid per share of Common Stock in the Merger, (A) which in the case of a conversion in connection with a Make-Whole Fundamental Change as described in the second sentence of Section 14.03(a) will be cash equal to $1,746.971 per $1,000 principal amount of Notes based on a Conversion Rate equal to (i) 20.4198 shares of Common Stock per $1,000 principal amount of Notes plus (ii) the Additional Shares, or 0.1328 shares of Common Stock per $1,000 principal amount of Notes (as determined by reference to the table set forth in Section 14.03(e) of the Indenture based on the Effective Date of the Make-Whole Fundamental Change being January 6, 2020 and the Stock Price paid per share of Common Stock in the Make-Whole Fundamental Change being $85.00), and (B) which in the case of a conversion at all other times when such Notes are convertible beginning immediately after the Business Day immediately preceding the Fundamental Change Repurchase Date corresponding to such Fundamental Change will be cash equal to $1,735.683 per $1,000 principal amount of Notes. Accordingly, any reference in respect of the Holders’ conversion rights to a share of Common Stock in the Indenture shall be deemed a reference to a right to receive an amount equal to $85.00 and the provisions of the Indenture, as modified herein, shall continue to apply, mutatis mutandis, to the Holders’ right to convert the Notes into the Reference Property.
Section 2.02. Last Reported Sale Price of the Common Stock. With respect to any date from and after the Effective Time, the Last Reported Sale Price shall be $85.00 on that date, notwithstanding anything to the contrary in the Indenture.
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
Section 3.01 Trustee’s Acceptance. The Trustee hereby accepts this Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
Section 4.01 Governing Law; Waiver of Trial by Jury. THIS SUPPLEMENTAL INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.02 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 4.03 Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 4.04 Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein provided.
Section 4.05 The Trustee. The Trustee makes no representations as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture. The recitals in this Supplemental Indenture are made by the Company only and not by the Trustee, and all of the rights, privileges, protections, immunities and benefits afforded to the Trustee under the Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee hereunder, in each of its capacities hereunder as if set forth herein in full. For purposes of Section 14.01(b)(iv) of the Indenture, the Company and the Trustee acknowledge, as a result of Section 2.02 above, the Notes may be surrendered for conversion pursuant to Section 14.01(b)(iv) of the Indenture and no further notice or determination pursuant to Section 14.01(b)(iv) of the Indenture is required.
Section 4.06 Effect on Successors and Assigns. Notwithstanding Section 17.09 of the Indenture, all agreements of the Company, the Trustee, the Note Registrar, the Paying Agent and the Conversion Agent in this Supplemental Indenture will bind their respective successors.
Section 4.07 Headings, Etc. The titles and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first written above.
|THE MEDICINES COMPANY|
|By:||/s/ Stephen M. Rodin|
|Name: Stephen M. Rodin|
|Title: Executive Vice President and General Counsel|
[Signature Page to 2023 Notes Supplemental Indenture]
|WELLS FARGO BANK, NATIONAL ASSOCIATION, |
|By:||/s/ Michael Q. Tu|
|Name: Michael Q. Tu|
|Title: Vice President|
[Signature Page to 2023 Notes Supplemental Indenture]