Exhibit 10.20(f)
Termination and Assignment
Agreement
Termination and Assignment Agreement
(this “ Agreement ”), dated as of December 19,
2006, between Deutsche Bank AG, acting through its London Branch
(“ Deutsche ”), Cephalon, Inc. (“
Cephalon ”) and each of the assignees listed on
Schedule 1 hereto (each, an “ Assignee
”).
Deutsche and Cephalon have entered
into a warrant transaction (the “ Warrant Transaction
”), dated June 2, 2005 and amended on June 28, 2005, relating
to 19,700,214 warrants on Cephalon’s common stock, par value
$0.01 per share, (“ Shares ”); a convertible
note hedge transaction (the “ Original Note Hedge
Transaction ”), dated June 2, 2005 and amended on June
28, 2005, relating to Cephalon’s Convertible Senior Notes due
June 1, 2015 (the “ Notes ”); and another
convertible note hedge transaction (the “
Overallotment Note Hedge Transaction ”), dated
June 28, 2005, relating to the Notes.
Deutsche and Cephalon wish to
terminate in part the Original Note Hedge Transaction, and Deutsche
wishes to assign to each Assignee and each Assignee wishes to
accept, all rights and obligations under part of the Warrant
Transaction.
Accordingly, the parties agree as
follows:—
1.
Original Note Hedge
Transaction
(a)
Repayment Event
. Cephalon has repurchased
$100,000,000 Notes, which constitutes a Repayment Event and an
Additional Termination Event under the Original Note Hedge
Transaction. Pursuant to the terms of the Original Note Hedge
Transaction, Deutsche is exercising its right to partially
terminate the Original Note Hedge Transaction, and Cephalon is
exercising its right to require that any amount owed by Deutsche in
connection with such termination be paid in Shares.
(b)
Settlement of Additional
Termination Event . Deutsche and Cephalon agree that the
amount owed by Deutsche in connection with the partial termination
referred to in paragraph 1(a) is the number of Shares separately
notified to Cephalon by Deutsche, acting in its capacity as
calculation agent. Deutsche shall deliver such number of
Shares to Cephalon on December 22, 2006.
2.
Warrant
Transaction
(a)
Assignment
. Deutsche agrees to assign,
and each Assignee agrees to accept, all of Deutsche’s rights
and obligations under the portion of the Warrant Transaction
relating to the number of Warrants set forth opposite each
Assignee’s name on Schedule 1 hereto (the “ Assigned
Warrants ”). Deutsche shall retain the remaining
Warrants (the “ Retained Warrants ”).
(b)
Settlement of
Assignment .
Deutsche and each Assignee agree that the amount owed by each
Assignee in connection with the partial assignment referred to in
paragraph 2(a) is the number of Shares set forth opposite each
Assignee’s name on Schedule 1 hereto (aggregating in total,
961,105 Shares), which is due on December 22, 2006 (the “
Assignment Settlement Date ”). The
assignment of the Assigned Warrants shall become effective upon
each Assignee’s delivery to Deutsche (or to Deutsche’s
designee, which may be Cephalon) of the relevant number of Shares
through the facilities of The Depository Trust Company, free from
any lien, charge, claim or other encumbrance and any other
restrictions whatsoever.
(c)
Modifications to Assigned
Warrants . Each
of the parties agree that the Assigned Warrants shall be modified
as follows (and the Assigned Warrants shall be construed as if
Cephalon had entered into a separate agreement with each Assignee
with respect to the Assigned Warrants):
(1)
All references to
“Deutsche”, “Deutsche Bank AG, London”,
“Deutsche Bank AG” and “Deutsche Bank AG, acting
through its London Branch” in the Assigned Warrants are
deemed to refer to the relevant Assignee;
(2)
The second full paragraph (all in
bolded caps), other than the definition of “Exchange
Act”, and the first full sentence of the last paragraph in
Section 13 (relating to The Financial Services Authority) are
deemed deleted;
(3)
From and after the Assignment
Settlement Date, Deutsche Bank AG, New York Branch shall be
relieved of all its obligations as Agent under the Assigned
Warrants, and all references to the Agent in the Assigned Warrants
are deemed deleted;
(4)
As applied to the Assigned Warrants,
the ISDA 1992 Master Agreement referred to therein shall be an ISDA
1992 Master Agreement between Assignee and Cephalon;
(5)
For the avoidance of doubt, the
reference in the definition of Maximum Number of Shares to be
Delivered to “the total Number of Warrants covered by this
Transaction” shall be deemed to refer to the number of
Assigned Warrants; and
(6)
The “Repurchase Notice”
provision of the Assigned Warrants shall be interpreted as if no
Repurchase Notice has yet been given, the reference to the
“Trade Date” in such provision refers to the Assignment
Settlement Date, and the numerator in the definition of Warrant
Equity Percentage refers only to the Assigned Warrants.
(7)
For the avoidance of doubt, each
relevant Assignee shall be the new Calculation Agent as defined in
section 2 of the Warrant and shall have the borrow protections
under section 11(c) of the Warrant; provided however in each case
only with respect to the portion of the Warrants that have been
assigned to such Assignee.
(d)
Modifications to Retained
Warrants . Each
of Deutsche and Cephalon agree that the Retained Warrants shall be
modified as follows (and the Retained Warrants shall be construed
as if Ce
