Exhibit 4.2
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
B IO M ARIN P HARMACEUTICAL I NC .
1.875% S ENIOR S UBORDINATED C ONVERTIBLE N OTES DUE 2017
N O . A1
CUSIP: 09061G AD3
BioMarin Pharmaceutical Inc., a
Delaware corporation, promises to pay to Cede & Co. or
registered assigns the principal amount of Three Hundred Twenty
Four Million Eight Hundred Seventy Five Thousand Dollars
($324,875,000) on April 23, 2017.
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Interest Payment Dates:
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April 23
and October 23,
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commencing
October 23, 2007
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Record
Dates:
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April 8 and
October 8
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This Security shall bear interest as
specified on the other side of this Security. This Security is
convertible as specified on the other side of this
Security.
Additional provisions of this
Security are set forth on the other side of this
Security.
Dated: April 23,
2007
[SIGNATURE PAGE
FOLLOWS]
Promise to Pay - 1 of 2
IN WITNESS WHEREOF, the Company has
caused this instrument to be duly executed as of April 23,
2007.
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BioMarin
Pharmaceutical Inc.
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By:
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By:
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Trustee’s
Certificate of Authentication:
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This is one of
the Securities referred to in the within-mentioned
Indenture.
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Wilmington
Trust Company, as Trustee
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By:
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Authorized
Signatory:
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Promise to Pay - 2 of 2
B IO M ARIN P HARMACEUTICAL I NC .
1.875% S ENIOR S UBORDINATED C ONVERTIBLE N OTES DUE 2017
The Company promises to pay interest
on the principal amount of this Note at the rate of 1.875% per
annum. The Company shall pay interest semiannually in arrears on
April 23 and October 23 of each year (each, an
“Interest Payment Date”), commencing on October 8,
2007. Interest on the Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid,
from April 23, 2007; provided, however , that if there
is not an existing default in the payment of interest and if this
Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, such Interest
Payment Date. Interest will be computed on the basis of a 360-day
year composed of twelve 30-day months.
If the Holder elects to require the
Company to repurchase this Security pursuant to Section 5 of
this Security, on a date that is after the Regular Record Date and
prior to the corresponding Interest Payment Date, interest,
including Special Interest, if any, accrued and unpaid hereon to,
but not including, the applicable Fundamental Change Repurchase
Date, will be paid to the Holder in whose name the Securities are
registered as of the close of business on the Regular Record Date
immediately preceding the applicable Fundamental Change Repurchase
Date.
A Holder of any Security at the
close of business on a Regular Record Date shall be entitled to
receive interest, including Special Interest, if any, on such
Security on the corresponding Interest Payment Date. A Holder of
any Security which is converted after the close of business on a
Regular Record Date and prior to the corresponding Interest Payment
Date (other than any Security whose Maturity is prior to such
Interest Payment Date) shall be entitled to receive interest,
including Special Interest, if any, on the principal amount of such
Security, notwithstanding the conversion of such Security prior to
such Interest Payment Date. However, any such Holder which
surrenders any such Security for conversion during the period
between the close of business on such Regular Record Date and
ending with the opening of business on the corresponding Interest
Payment Date shall be required to pay the Company an amount equal
to the interest, including Special Interest, if any, on the
principal amount of such Security so converted (but excluding any
overdue interest, including Special Interest, if any, on the
principal amount of such Security so converted that exists at the
time such Holder surrenders such Security for conversion), which is
payable by the Company to such Holder on such Interest Payment
Date, at the time such Holder surrenders such Security for
conversion. Notwithstanding the foregoing, any such Holder which
surrenders for conversion any Security (a) with respect to
which the Company has specified a Fundamental Change Repurchase
Date that is after such Regular Record Date and on or prior to the
next succeeding Interest Payment Date, or (b) after the last
Regular Record Date prior to the Final Maturity Date, in either
case, shall be entitled to receive (and retain) such interest,
including Special Interest, if any, and need not pay the Company an
amount equal to the interest, including Special Interest, if any,
on the principal amount of such Security so converted at the time
such Holder surrenders such Security for conversion.
Form of Reverse Side of Security
Page 1
The Company shall pay interest,
including Special Interest, if any, on this Security (except
defaulted interest) to the person who is the Holder of this
Security at the close of business on April 8 and
October 8, as the case may be, (each, a “Regular Record
Date”) immediately preceding the related Interest Payment
Date. The Holder must surrender this Security to a Paying Agent to
collect payment of principal. The Company will pay principal and
interest and Special Interest, if any, in money of the United
States that at the time of payment is legal tender for payment of
public and private debts. The Company may pay principal and
interest, including Special Interest, if any, in respect of any
Certificated Security by check or wire transfer payable in such
money; provided, however , that a Holder with an aggregate
principal amount in excess of $5,000,000 will be paid by wire
transfer in immediately available funds at the election of such
Holder if such Holder has provided wire transfer instructions to
the Trustee at least 10 Business Days prior to the Payment Date.
The Company may mail an interest check to the Holder’s
registered address. Notwithstanding the foregoing, so long as this
Security is registered in the name of a Depositary or its nominee,
all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its
nominee.
Any wire transfer instructions
received by the Trustee will remain in effect until revoked by the
Holder.
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3.
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PAYING AGENT,
REGISTRAR AND CONVERSION AGENT
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Initially, Wilmington Trust Company
(the “Trustee,” which term shall include any successor
trustee under the Indenture hereinafter referred to) will act as
Paying Agent, Registrar and Conversion Agent. The Company may
change any Paying Agent, Registrar or Conversion Agent without
notice to the Holder. The Company or any of its Subsidiaries may,
subject to certain limitations set forth in the Indenture, act as
Paying Agent or Registrar.
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4.
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INDENTURE,
LIMITATIONS
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This Security is one of a duly
authorized issue of Securities of the Company designated as its
1.875% Senior Subordinated Convertible Notes Due 2017 (the
“Securities”), issued under an Indenture dated as of
March 29, 2006 (the “Base Indenture”), as
supplemented by the Second Supplemental Indenture dated
April 23, 2007 (the “Second Supplemental
Indenture” and together with the Base Indenture, the
“Indenture”), between the Company and the Trustee. The
terms of this Security include those stated in the Indenture and
those required by or made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended, as in effect on the date
of the Indenture. This Security is subject to all such terms, and
the Holder of this Security is referred to the Indenture and said
Act for a statement of them.
The Securities are senior
subordinated unsecured obligations of the Company limited to
$324,875,000 in aggregate principal amount at maturity. The
Indenture does not limit the incurrence of other debt of the
Company or its existing or future Subsidiaries, secured or
unsecured.
Form of Reverse Side of Security
Page 2
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5.
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PURCHASE OF
SECURITIES AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE
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If a Fundamental Change occurs, at
the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase for
cash, subject to certain exceptions described in the Indenture all
or any part specified by the Holder (so long as the principal
amount of such part is $1,000 or an integral multiple of $1,000) of
the Securities held by such Holder on a date specified by the
Company that is no later than 30 days after the date of the
Fundamental Change Company Notice, at a purchase price equal to
100% of the principal amount thereof together with unpaid interest,
including Special Interest, if any, accrued to, but excluding, the
Fundamental Change Repurchase Date. A Fundamental Change Company
Notice shall be given by the Company to the Holders as provided in
the Second Supplemental Indenture. To exercise such repurchase
right, a Holder must deliver to the Trustee a Fundamental Change
Repurchase Notice as provided in the Second Supplemental
Indenture.
Subject to and upon compliance with
the provisions of the Indenture, a Holder may surrender for
conversion any Security that is $1,000 principal amount or integral
multiples thereof.
Subject to certain conditions
provided for in the Second Supplemental Indenture, in certain
circumstances, a Holder may receive an amount in Common Stock equal
to the Make Whole Premium, in addition to the shares of Common
Stock issuable upon conversion of such Security.
The Conversion Rate shall be
initially equal to 49.1171 shares of Common Stock per $1,000
principal amount of Securities. The Conversion Rate shall be
adjusted under certain circumstances as provided in the
Indenture.
No fractional share of Common Stock
shall be issued upon conversion of a Security. Instead, the Company
shall pay a cash adjustment as provided in the
Indenture.
The Indebtedness evidenced by this
Security is, to the extent and in the manner provided in the
Indenture, subordinated and subject in right of payment to the
prior payment in full of all amounts