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EXHIBIT
4.14
JAZZ
PHARMACEUTICALS, INC.
and
, AS WARRANT AGENT
FORM OF DEBT
SECURITIES
WARRANT
AGREEMENT
DATED AS OF
JAZZ
PHARMACEUTICALS, INC.
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
D EBT S
ECURITIES W ARRANT A
GREEMENT (this “Agreement”), dated
as of
between J AZZ P HARMACEUTICALS
, I NC ., a Delaware corporation (the
“Company”) and
, a [corporation] [national banking association] organized and
existing under the laws of
and having a corporate trust office in
, as warrant agent (the “Warrant Agent”).
W HEREAS
, the Company has entered into an indenture dated as of [
(the “Senior Indenture”), with
, as trustee (such trustee, and any successors to such trustee,
herein called the “Senior Trustee”), providing for the
issuance from time to time of its unsubordinated debt securities,
to be issued in one or more series as provided in the Senior
Indenture (the “Debt Securities”);] [
(the “Subordinated Indenture”), with
, as trustee (such trustee, and any successors to such trustee,
herein called the “Subordinated Trustee”), providing
for the issuance from time to time of its subordinated debt
securities, to be issued in one or more series as provided in the
Subordinated Indenture (the “Debt
Securities”);]
W HEREAS
, the Company proposes to sell [If Warrants are sold with other
securities—title of such other securities being offered (the
“Other Securities”) with] warrant certificates
evidencing one or more warrants (the “Warrants” or,
individually, a “Warrant”) representing the right to
purchase [title of Debt Securities purchasable through exercise of
Warrants] (the “Warrant Debt Securities”), such warrant
certificates and other warrant certificates issued pursuant to this
Agreement being herein called the “Warrant
Certificates”; and
W HEREAS
, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of
the Warrant Certificates and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and
replaced.
N OW , T
HEREFORE , in consideration of the premises and
of the mutual agreements herein contained, the parties hereto agree
as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND
EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance of
Warrants. [If Warrants alone—Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Other
Securities and Warrants—Warrant Certificates shall be
[initially] issued in connection with the issuance of the Other
Securities [but shall be separately transferable on and after
(the “Detachable Date”)] [and shall not
be separately transferable] and each
Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase one Warrant
Debt Security. [If Other Securities and Warrants—Warrant
Certificates shall be initially issued in units with the Other
Securities and each Warrant Certificate included in such a unit
shall evidence
Warrants for each [$
principal amount] [
shares] of Other Securities included in such
unit].
1.2 Execution and Delivery
of Warrant Certificates. Each Warrant Certificate, whenever
issued, shall be in registered form substantially in the form set
forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters,
numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon
as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by any of its present or future chief
executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be
exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates
either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding
that the person who signed Warrant Certificates ceased to be such
officer of the Company; and any Warrant Certificate may be signed
on behalf of the Company by such persons as, at the actual date of
the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of
this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein
shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose [If Other Securities and
Warrants are not immediately detachable—or upon the
registration of the Other Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the
registrar of the Other Securities to, make available at all times
to the Warrant Agent such information as to holders of the Other
Securities as may be necessary to keep the Warrant Agent’s
records up to date].
1.3 Issuance of Warrant
Certificates. Warrant Certificates evidencing the right to
purchase Warrant Debt Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the
Company.
ARTICLE 2
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
2.1 Warrant Price.
During the period specified in Section 2.2, each Warrant
shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof, to
purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of
% of the principal amount thereof [plus accrued amortization, if
any, of the original issue discount of the Warrant Debt Securities]
[plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities
or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original
issue discount ($
for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a
% annual rate, computed on a[n] [semi-] annual basis [using a
360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this
Agreement as the “Warrant Price.”
2.2 Duration of
Warrants. Each Warrant may be exercised in whole or in part at
any time, as specified herein, on or after [the date thereof] [
] and at or before [
] p.m., [City] time, on
or such later date as the Company may designate by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to
their addresses as set forth in the record books of the Warrant
Agent (the “Expiration Date”). Each Warrant not
exercised at or before [
] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
2.3 Exercise Of
Warrants.
(a) During the period
specified in Section 2.2, the Warrants may be exercised to
purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse
side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by
bank wire transfer in immediately available funds] the Warrant
Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of
the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is
exercised;
provided, however, that if, at the date
of receipt of such Warrant Certificates and payment in full of the
Warrant Price, the transfer books for the Warrant Debt Securities
purchasable upon the exercise of such Warrants shall be closed, no
such receipt of such Warrant Certificates and no such payment of
such Warrant Price shall be effective to constitute the person so
designated to be named as the holder of record of such Warrant Debt
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Debt Securities for
all purposes at the opening of business on the next succeeding day
on which the transfer books for the Warrant Debt Securities
purchasable upon the exercise of such Warrants shall be opened, and
the certificates for the Warrant Debt Securities in respect of
which such Warrants are then exercised shall be issuable as of the
date on such next succeeding day on which the transfer books shall
next be opened, and until such date the Company shall be under no
duty to deliver any certificate for such Warrant Debt Securities.
The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with
it and shall advise the Company by telephone at the end of each day
on which a payment for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in
writing.
(b) The Warrant Agent
shall, from time to time, as promptly as practicable, advise the
Company of (i) the number of Warrant Debt Securities with
respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Debt
Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants for the remaining Warrant Debt Securities
after such exercise, and (iv) such other information as the
Company or the [Senior] [Subordinated] Trustee shall reasonably
require.
(c) As soon as
practicable after the exercise of any Warrant, the Company shall
issue, pursuant to the Indenture, in authorized denominations, to
or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all
of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The Company shall
not be required to pay any stamp or other tax or other governmental
charge required to be paid in connection with any transfer involved
in the issue of the Warrant Debt Securities, and in the event that
any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Debt Securities until such tax or
other charge shall have been paid or it has been established to the
Company’s satisfaction that no such tax or other charge is
due.
(e) Prior to the
issuance of any Warrants there shall have been reserved, and the
Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the
exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING
TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1 No Rights As Holders
of Warrant Debt Securities Conferred By Warrants or Warrant
Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Debt Securities, including, without limitation,
the right to receive the payment of principal of (or premium, if
any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants in the Indenture.
3.2 Lost, Stolen,
Mutilated or Destroyed Warrant Certificates. Upon receipt by
the Warrant Agent of evidence reasonably satisfactory to it and the
Company of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing Warrants for a
like principal amount of Warrant Debt Securities. Upon the issuance
of any new Warrant Certificate under this Section 3.2, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this
Section 3.2 in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of
the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall
be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this
Section 3.2 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder Of Warrant
Certificate May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any holder of any Warrant
Certificate, without the consent of the Warrant Agent, the [Senior]
[Subordinated] Trustee, the holder of any Warrant Debt Securities
or the holder of any other Warrant Certificate, may, in such
holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder’s right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificates and in this
Agreement.
3.4 Merger, Sale,
Conveyance or Lease. In case of (a) any share exchange,
merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving
corporation) or (b) the sale, exchange, lease, transfer or
other disposition of all or substantially all of the properties and
assets of the Company as an entirety (in any such case, a
“Reorganization Event”), then, as a condition of such
Reorganization Event, lawful provisions
shall be made, and duly executed
documents evidencing the same from the Company’s successor
shall be delivered to the holders of the Warrants, so that such
successor shall succeed to and be substituted for the Company, and
assume all the Company’s obligations under, this Agreement
and the Warrants. The Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company
as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or
assuming entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which heretofore shall not have
been signed by the Company, and may execute and deliver securities
in its own name, in fulfillment of its obligations to deliver
Warrant Debt Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as
though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such Reorganization Event,
such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be
appropriate.
3.5 Notice To
Warrantholders. In case the Company shall (a) effect any
Reorganization Event or (b) make any distribution on or in
respect of the [title of Warrant Debt Securities] in connection
with the dissolution, liquidation or winding up of the Company,
then the Company shall mail to each holder of Warrants at such
holder’s address as it shall appear on the books of the
Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating the date on which such
Reorganization Event, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of [title of Warrant Debt Securities] of
record shall be entitled to exchange their shares of [title of
Warrant Debt Securities] for securities or other property
deliverable upon such Reorganization Event, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such
transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF
WARRANT CERTIFICATES
4.1 Exchange and Transfer
of Warrant Certificates. [If Other Securities with Warrants
which are immediately detachable—Upon] [If Other Securities
with Warrants which are not immediately detachable—Prior to
the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Other Security to which the
Warrant Certificate was initially attached, and only for the
purpose of effecting or in conjunction with an exchange or transfer
of such Other Security. Prior to any Detachable Date, each transfer
of the Other Security shall operate also to transfer the related
Warrant Certificates. After the Detachable Date, upon] surrender at
the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same
aggregate principal amount of Warrant Debt Securities as the
Warrant Certificates so surrendered. The Warrant Agent shall keep,
at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its
corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange
or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Debt Security or a number of Warrants for a
whole number of Warrant Debt Securities and a fraction of a Warrant
Debt Security. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and
entitled to the same benef
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