THE EXCHANGE OFFER
Purpose of the Exchange Offer
When we
issued the Restricted Notes on December 9, 2015, the Company, Mylan Inc. and the initial purchasers of the Restricted Notes entered into a registration rights agreement. Under the terms of the registration rights agreement, the Company and Mylan
Inc. agreed to use commercially reasonable efforts to:
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file with the SEC, and cause to become effective, a registration statement relating to an offer to exchange the Restricted Notes for the Exchange Notes; and
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to consummate the exchange offer not later than 365 days after the date of issuance of the Restricted Notes.
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If we do not complete the exchange offer on or prior to December 9, 2016 or if we fail to meet certain other conditions described under
Description of the Exchange NotesRegistration RightsAdditional Interest, the interest rate borne by the Restricted Notes will increase at a rate of 0.25% per annum every 90 days following the occurrence of such a registration
default (but shall not exceed 0.50% per annum in total) until the condition which gave rise to the additional interest is cured.
Under
some circumstances set forth in the registration rights agreement, holders of the Restricted Notes, including holders who are not permitted to participate in the exchange offer, may require us to file, and cause to become effective, a shelf
registration statement covering resales of the Restricted Notes by these holders.
We are making the exchange offer in reliance on the
position of the SEC as described in previous no-action letters issued to third parties, including in Exxon Capital Holdings Corporation (April 13, 1988), Morgan Stanley & Co., Inc. (June 5, 1991), Shearman & Sterling (July 2, 1993)
and similar no-action letters. However, we have not sought our own no-action letter. Based upon these interpretations by the SEC, we believe that a holder who exchanges Restricted Notes for Exchange Notes in the exchange offer generally may offer
the Exchange Notes for resale, sell the Exchange Notes and otherwise transfer the Exchange Notes without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the
Securities Act. The preceding sentence does not apply, however, to a holder who is our affiliate within the meaning of Rule 405 of the Securities Act. We also believe that a holder may offer, sell or transfer the Exchange Notes only if
the holder acknowledges that the holder is acquiring the Exchange Notes in the ordinary course of its business and is not participating, does not intend to participate and has no arrangement or understanding with any person to participate in a
distribution, as defined in the Securities Act, of the Exchange Notes. We have not entered into any arrangement or understanding with any person who will receive Exchange Notes in the exchange offer to distribute such Exchange Notes
following completion of the exchange offer, and, to the best of our information and belief, we are not aware of any person that will participate in the exchange offer with a view to distribute the Exchange Notes. A holder who exchanges Restricted
Notes for Exchange Notes in the exchange offer for the purpose of distributing such Exchange Notes cannot rely on the interpretations of the staff of the SEC in the aforementioned no-action letters, must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any secondary resale of the Exchange Notes and must be identified as an underwriter in the prospectus.
Each broker-dealer that receives the Exchange Notes for its own account in exchange for the Restricted Notes, where the Restricted Notes were
acquired by it as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the Exchange Notes and that it
has not entered into any agreement or understanding with us or any of our affiliates, as defined in Rule 405 under the Securities Act, to participate in a distribution, as defined under the Securities Act, of the Exchange
Notes. By so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. See Plan of Distribution.
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The summary herein of certain provisions of the registration rights agreement does not purport to
be complete, and is qualified in its entirety by reference to, all the provisions of the registration rights agreement, a copy of which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part.
Terms of the Exchange Offer
Subject
to the terms and the satisfaction or waiver of the conditions detailed in this prospectus, we will accept for exchange the Restricted Notes which are properly tendered on or prior to the expiration date and not validly withdrawn as permitted below.
As used herein, the term expiration date means 5:00 p.m., New York City time, on January 31, 2017. We may, however, in our sole discretion, extend the period of time during which the exchange offer is open. The term expiration
date means the latest time and date to which the exchange offer is extended.
As of the date of this prospectus, $1.0 billion
aggregate principal amount of the Restricted Notes are outstanding. This prospectus, together with the letter of transmittal, is first being sent on or about the date hereof to all holders of the Restricted Notes known to us.
We expressly reserve the right, at any time prior to the expiration of the exchange offer, to extend the period of time during which the
exchange offer is open and delay acceptance for exchange of any Restricted Notes, by giving oral or written notice of such extension to holders thereof as described below. During any such extension, all the Restricted Notes previously tendered will
remain subject to the exchange offer and may be accepted for exchange by us. Any Restricted Notes not accepted for exchange for any reason will be returned without expense to an account maintained with DTC promptly upon expiration or termination of
the exchange offer.
The Restricted Notes tendered in the exchange offer must be in denominations of principal amount of $2,000 and any
integral multiple of $1,000 in excess thereof.
We expressly reserve the right to amend or terminate the exchange offer, and not to accept
for exchange any Restricted Notes, upon the occurrence of any of the conditions of the exchange offer specified under Conditions to the Exchange Offer. We will give oral or written notice of any extension, amendment, non-acceptance
or termination to the holders of the Restricted Notes as promptly as practicable. Such notice, in the case of any extension, will be issued by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled expiration date.
Procedures for Tendering Restricted Notes
The tender to us of Restricted Notes by you as set forth below and our acceptance of the Restricted Notes will constitute a binding agreement
between us and you upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal. Except as set forth below, to tender Restricted Notes for exchange pursuant to the exchange offer, you must
transmit a properly completed and duly executed letter of transmittal, including all other documents required by such letter of transmittal or, in the case of a book-entry transfer, an agents message in lieu of such letter of transmittal, to
The Bank of New York Mellon, as exchange agent, at the address set forth below under Exchange Agent on or prior to the expiration date. In addition, either:
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certificates for such Restricted Notes must be received by the exchange agent along with the letter of transmittal; or
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a timely confirmation of a book-entry transfer (a book-entry confirmation) of such Restricted Notes, if such procedure is available, into the exchange agents account at DTC pursuant to the procedure
for book-entry transfer must be received by the exchange agent, prior to the expiration date, with the letter of transmittal or an agents message in lieu of such letter of transmittal.
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The term agents message means a message, transmitted by DTC to and received by
the exchange agent and forming a part of a book-entry transfer, which states that DTC has received an express acknowledgment from the tendering participant stating that such participant has received and agrees to be bound by the letter of
transmittal.
The method of delivery of Restricted Notes, letters of transmittal and all other required documents is at your election and
risk. If such delivery is by mail, it is recommended that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure timely delivery. No letter of transmittal or Restricted
Notes should be sent to us.
Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed
unless the Restricted Notes surrendered for exchange are tendered:
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by a holder of the Restricted Notes who has not completed the box entitled Special Issuance Instructions or Special Delivery Instructions on the letter of transmittal; or
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for the account of an eligible institution (as defined below).
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In the event that signatures
on a letter of transmittal or a notice of withdrawal are required to be guaranteed, such guarantees must be by a firm which is a member of the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock
Exchange Medallion Program (each such entity being hereinafter referred to as an eligible institution). If Restricted Notes are registered in the name of a person other than the signer of the letter of transmittal, the Restricted Notes
surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as we or the exchange agent determine in our sole discretion, duly executed by the registered
holders with the signature thereon guaranteed by an eligible institution.
If the letter of transmittal is signed by a person or persons
other than the registered holder or holders of Restricted Notes, such Restricted Notes must be endorsed or accompanied by powers of attorney signed exactly as the name(s) of the registered holder(s) that appear on the Restricted Notes.
If the letter of transmittal or any Restricted Notes or powers of attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing. Unless waived by us or the exchange agent, proper evidence satisfactory to us of their authority to
so act must be submitted with the letter of transmittal.
If you are a beneficial owner whose Restricted Notes are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee and wish to tender your Restricted Notes, you should promptly instruct the registered holder to tender such Restricted Notes on your behalf. Any registered holder that is a
participant in DTCs book-entry transfer facility system may make book-entry delivery of the Restricted Notes by causing DTC to transfer the Restricted Notes into the exchange agents account.
If you wish to tender your Restricted Notes in the exchange offer on your own behalf, prior to completing and executing the letter of
transmittal and delivering your Restricted Notes, you must either make appropriate arrangements to register ownership of the Restricted Notes in your name with DTC or obtain a properly completed note power from the person in whose name the
Restricted Notes are registered.
We or the exchange agent, in our sole discretion, will make a final and binding determination on all
questions as to the validity, form, eligibility (including time of receipt) and acceptance of the Restricted Notes tendered for exchange. We reserve the absolute right to reject any and all tenders not properly tendered or to not accept any tender
which acceptance might, in our judgment or our counsels, be unlawful. We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to any individual tender
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before the expiration date (including the right to waive the ineligibility of any holder who seeks to tender the Restricted Notes in the exchange offer). Our or the exchange agents
interpretation of the terms and conditions of the exchange offer (including the letter of transmittal and the instructions thereto) as to any particular tender either before or after the expiration date will be final and binding on all parties.
Unless waived, any defects or irregularities in connection with tenders of the Restricted Notes for exchange must be cured within a reasonable period of time, as we determine. We are not nor is the exchange agent or any other person under any duty
to notify you of any defect or irregularity with respect to your tender of the Restricted Notes for exchange, and no one will be liable for failing to provide such notification.
By tendering the Restricted Notes, you represent to us that: (i) you are not our affiliate, as defined in Rule 405 under the
Securities Act, (ii) you are not participating, and do not intend to participate, and have no arrangement or understanding with any person to participate, in a distribution, as defined in the Securities Act, of the Exchange Notes to be
issued in the exchange offer, (iii) you are acquiring the Exchange Notes in your ordinary course of business and (iv) if you are a broker-dealer, you will receive the Exchange Notes for your own account in exchange for the Restricted Notes that were
acquired by you as a result of your market-making or other trading activities, you will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the Exchange Notes you receive and you have not entered
into any agreement or understanding with us or any of our affiliates, as defined in Rule 405 under the Securities Act, to participate in a distribution, as defined in the Securities Act, of the Exchange Notes. For further
information regarding resales of the Exchange Notes by participating broker-dealers, see the discussion under the caption Plan of Distribution.
If any holder or other person is an affiliate of ours, as defined in Rule 405 under the Securities Act, or is participating, or
intends to participate, or has an arrangement or understanding with any person to participate, in a distribution, as defined in the Securities Act, of the Exchange Notes, that holder or other person cannot rely on the applicable
interpretations of the staff of the SEC, may not tender its Restricted Notes in the exchange offer and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
Each broker-dealer that receives the Exchange Notes for its own account in exchange for the Restricted Notes, where the Restricted Notes were
acquired by it as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the Exchange Notes. By so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act (other than in connection with a resale of an unsold allotment from the original
sale of the Restricted Notes).
Furthermore, any broker-dealer that acquired any of its Restricted Notes directly from us:
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may not rely on the applicable interpretation of the SEC staffs position contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan, Stanley & Co. Inc., SEC no-action letter (June
5, 1991) and Shearman & Sterling, SEC no-action letter (July 2, 1993); and
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must also be named as a selling noteholder in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
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By delivering a letter of transmittal or an agents message, a holder or a beneficial owner (whose Restricted Notes are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee) will have or will be deemed to have irrevocably appointed the exchange agent as its agent and attorney-in-fact (with full knowledge that the exchange agent is also acting as
an agent for us in connection with the exchange offer) with respect to the Restricted Notes, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest subject only to the right of
withdrawal described in this prospectus), to receive for our account all benefits and otherwise exercise all rights of beneficial ownership of such Restricted Notes, in accordance with the terms and conditions of the exchange offer.
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Each holder or beneficial owner will also have or be deemed to have represented and warranted to
us that it has authority to tender, exchange, sell, assign and transfer the Restricted Notes it tenders and that, when the same are accepted for exchange, we will acquire good, marketable and unencumbered title to such Restricted Notes, free and
clear of all liens, restrictions, charges and encumbrances, and that the Restricted Notes tendered are not subject to any adverse claims or proxies. Each holder and beneficial owner, by tendering its Restricted Notes, also agrees that it will comply
with its obligations under the registration rights agreement.
Acceptance of Restricted Notes for Exchange; Delivery of Exchange Notes
Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly upon the expiration date, all the
Restricted Notes properly tendered and will issue the Exchange Notes promptly after acceptance of the Restricted Notes. See Conditions to the Exchange Offer. For purposes of the exchange offer, we will be deemed to have accepted
properly tendered the Restricted Notes for exchange if and when we give oral (confirmed in writing) or written notice to the exchange agent.
The holder of each Restricted Note accepted for exchange will receive an Exchange Note in an amount equal to the principal amount of the
surrendered Restricted Note. Holders of the Exchange Notes on the relevant record date for the first interest payment date following the consummation of the exchange offer will receive interest accruing from the most recent date to which interest
has been paid on the Restricted Notes or, if no interest has been paid, from the issue date of the Restricted Notes. Holders of the Exchange Notes will not receive any payment in respect of accrued interest on the Restricted Notes otherwise payable
on any interest payment date, the record date for which occurs on or after the consummation of the exchange offer. Interest on the Restricted Notes accepted for exchange will cease to accrue upon the issuance of the Exchange Notes.
In all cases, issuance of the Exchange Notes for the Restricted Notes that are accepted for exchange will be made only after timely receipt by
the exchange agent of an agents message and a timely confirmation of book-entry transfer of the Restricted Notes into the exchange agents account at DTC.
If any tendered Restricted Notes are not accepted for any reason set forth in the terms and conditions of the exchange offer or if the
Restricted Notes are submitted for a greater principal amount than the holder desires to exchange, such unaccepted or non-exchanged Restricted Notes will be returned without expense to the holder or, in the case of Restricted Notes tendered by
book-entry transfer into the exchange agents account at DTC pursuant to the book-entry procedures described below, an account maintained by the holder or on the holders behalf with DTC promptly upon the expiration or termination of the
exchange offer.
Book-Entry Transfers
The exchange agent will make a request to establish an account for the Restricted Notes at DTC for purposes of the exchange offer within two
business days after the date of this prospectus. Any financial institution that is a participant in DTCs systems may make book-entry delivery of the Restricted Notes by causing DTC to transfer those Restricted Notes into the exchange
agents account at DTC in accordance with DTCs procedure for transfer. This participant should transmit its acceptance to DTC on or prior to the expiration date. DTC will verify this acceptance, execute a book-entry transfer of the
tendered Restricted Notes into the exchange agents account at DTC and then send to the exchange agent confirmation of this book-entry transfer. A tender of Restricted Notes through a book-entry transfer into the exchange agents account
will only be effective if an agents message or the letter of transmittal with any required signature guarantees and any other required documents are transmitted to and received or confirmed by the exchange agent at the address set forth below
under the caption Exchange Agent, prior to 5:00 p.m., New York City time, on the expiration date. Delivery of documents to DTC in accordance with its procedures does not constitute delivery to the exchange agent.
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Withdrawal Rights
For a withdrawal of a tender of the Restricted Notes to be effective, the exchange agent must either:
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receive a valid withdrawal request through the DTCs Automated Tender Offer Program system from the tendering DTC participant before the expiration date. Any such request for withdrawal must include the VOI number
of the tender to be withdrawn and the name of the ultimate beneficial owner of the related Restricted Notes in order that such Restricted Notes may be withdrawn; or
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deliver a written notice of withdrawal to the exchange agent at one of the addresses set forth under Exchange Agent that specifies (i) the name of the person having tendered the Restricted Notes to be
withdrawn; (ii) the Restricted Notes to be withdrawn (including the aggregate principal amount of such Restricted Notes); and (iii) where certificates for the Restricted Notes have been transmitted, the name in which such Restricted Notes are
registered, if different from that of the withdrawing holder. If certificates for Restricted Notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, the withdrawing holder must also
submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an eligible institution, unless such holder is an eligible institution.
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Properly withdrawn Restricted Notes may be re-tendered by following the procedures described under Procedures for Tendering
Restricted Notes above at any time on or before 5:00 p.m., New York City time, on the expiration date.
We will determine all
questions as to the validity, form and eligibility (including time of receipt) of notices of withdrawal. Any Restricted Notes so withdrawn will be deemed not to have been validly tendered for exchange. No Exchange Notes will be issued unless the
Restricted Notes so withdrawn are validly re-tendered.
Conditions to the Exchange Offer
Notwithstanding any other provision of the exchange offer, we are not required to accept for exchange, or to issue the Exchange Notes in
exchange for, any Restricted Notes and may terminate or amend the exchange offer, if any of the following events occur prior to the expiration date:
(a) the exchange offer violates any applicable law or applicable interpretation of the staff of the SEC; or
(b) there is threatened, instituted or pending any action or proceeding before, or any injunction, order or decree has been
issued by, any court or governmental agency or other governmental regulatory or administrative agency or commission,
(1)
seeking to restrain or prohibit the making or consummation of the exchange offer or any other transaction contemplated by the exchange offer, or assessing or seeking any damages as a result thereof, or
(2) resulting in a material delay in our ability to accept for exchange or exchange some or all of the Exchange Notes pursuant
to the exchange offer;
or any statute, rule, regulation, order or injunction has been sought, proposed, introduced, enacted, promulgated
or deemed applicable to the exchange offer or any of the transactions contemplated by the exchange offer by any government or governmental authority, domestic or foreign, or any action has been taken, proposed or threatened, by any government,
governmental authority, agency or court, domestic or foreign, that in our sole judgment might, directly or indirectly, result in any of the consequences referred to in clauses (1) or (2) above or, in our reasonable judgment, might result in the
holders of the Exchange Notes having obligations with respect to resales and transfers of the Exchange Notes which are greater than those described in the interpretation of the SEC referred to in Procedures for Tendering Restricted
Notes, or would otherwise make it inadvisable to proceed with the exchange offer; or
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(c) we have not obtained any governmental approval which we deem necessary for
the consummation of the exchange offer; or
(d) there has occurred:
(1) any general suspension of, or general limitation on, prices for, or trading in, securities on any national securities
exchange or in the over-the-counter market,
(2) any limitation by a governmental agency or authority which may adversely
affect our ability to complete the transactions contemplated by the exchange offer,
(3) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United States or any limitation by any governmental agency or authority which adversely affects the extension of credit, or
(4) a commencement of a war, armed hostilities or other similar international calamity directly or indirectly involving the
United States or, in the case of any of the foregoing existing at the time of the commencement of the exchange offer, a material acceleration or worsening thereof; or
(e) any change (or any development involving a prospective change) has occurred or is threatened in our business, properties,
assets, liabilities, financial condition, operations, results of operations or prospects and our subsidiaries taken as a whole that, in our reasonable judgment, is or may be adverse to us, or we have become aware of facts that, in our reasonable
judgment, have or may have adverse significance with respect to the value of the Restricted Notes or the Exchange Notes;
which, in each case, and
regardless of the circumstances (including any action by us) giving rise to any such condition, makes it inadvisable, in our reasonable judgment, to proceed with the exchange offer, such acceptance for exchange or such exchange.
The foregoing conditions are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any condition or
may be waived by us in whole or in part at any time in our reasonable discretion. Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which
may be asserted at any time.
In addition, we will not accept for exchange any Restricted Notes tendered, and no Exchange Notes will be
issued in exchange for any such Restricted Notes, if at such time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended.
Exchange Agent
We have appointed The Bank of New York Mellon as the exchange agent for the exchange offer. Questions and requests for assistance, requests for
additional copies of this prospectus, the letter of transmittal or other documents should be directed to the exchange agent addressed as follows:
The Bank of New York Mellon, Exchange Agent
By Registered or Certified Mail, Overnight Delivery:
c/o The Bank of New York Mellon Corporation
Corporate Trust OperationsReorganization Unit
111 Sanders Creek Parkway
East
Syracuse, NY 13057
Attn: Pamela Adamo
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For Information Call:
315-414-3317
For Facsimile
Transmission (for Eligible Institutions only):
(732) 667-9408
Confirm by E-mail:
CT_REORG_UNIT_INQUIRIES@bnymellon.com
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF SUCH LETTER OF TRANSMITTAL VIA FACSIMILE OTHER THAN AS
SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF THE LETTER OF TRANSMITTAL.
Fees and Expenses
We will pay the exchange agent customary fees for its services, reimburse the exchange agent for its reasonable out-of-pocket expenses incurred
in connection with the provision of these services and pay other registration expenses, including registration and filing fees, fees and expenses of compliance with federal securities and state blue sky securities laws, printing expenses, messenger
and delivery services and telephone fees and disbursements to our counsel, application and filing fees and any fees and disbursement to our independent certified public accountants. We will not make any payment to brokers, dealers or others
soliciting acceptances of the exchange offer.
This solicitation is being made primarily by electronic means. Additional solicitation may
be made by telephone, facsimile or in person by our and our affiliates officers and regular employees and by persons so engaged by the exchange agent.
Accounting Treatment
We will record the
Exchange Notes at the same carrying value as the Restricted Notes, as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes. The expenses of the exchange offer
will be amortized over the terms of the Exchange Notes.
Transfer Taxes
You will not be obligated to pay any transfer taxes in connection with the tender of the Restricted Notes in the exchange offer unless you
instruct us to register the Exchange Notes in the name of, or request that the Restricted Notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder or unless a transfer tax is
imposed for any reason other than the exchange of Restricted Notes in connection with the exchange offer. In those cases, the tendering holder will be responsible for the payment of any applicable transfer tax. If the tendering holder does not
submit satisfactory evidence of payment of these taxes or exemption therefrom with the letter of transmittal, the amount of these transfer taxes will be billed directly to the tendering holder.
Consequences of Exchanging or Failing to Exchange Restricted Notes
The information below concerning specific interpretations of, and positions taken by, the staff of the SEC is not intended to constitute legal
advice, and prospective purchasers should consult their own legal advisors with respect to those matters.
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If you do not exchange your Restricted Notes for the Exchange Notes in the exchange offer, your
Restricted Notes will continue to be subject to the provisions of the Indenture regarding transfer and exchange of the Restricted Notes and the restrictions on transfer of the Restricted Notes imposed by the Securities Act and state securities law.
These transfer restrictions are required because the Restricted Notes were issued under an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, the
Restricted Notes may not be offered or sold unless registered under the Securities Act, except under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not plan to register the
Restricted Notes under the Securities Act.
Based on interpretations by the staff of the SEC, as detailed in a series of no-action letters
issued to third parties, we believe that the Exchange Notes issued in the exchange offer may be offered for resale, resold or otherwise transferred by you without compliance with the registration and prospectus delivery requirements of the
Securities Act as long as:
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you are acquiring the Exchange Notes in the ordinary course of your business;
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you are not an affiliate, as defined in Rule 405 under the Securities Act, of ours; and
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you are not participating, do not intend to participate and have no arrangement or understanding with any person to participate, in a distribution, as defined in the Securities Act, of the Exchange Notes.
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If you are an affiliate, as defined in Rule 405 under the Securities Act, of ours, or are participating, or
intend to participate, or have any arrangement or understanding with any person to participate, in a distribution, as defined in the Securities Act, of the Exchange Notes:
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you cannot rely on the applicable interpretations of the staff of the SEC;
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you will not be entitled to participate in the exchange offer; and
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you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
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We do not intend to seek our own interpretation regarding the exchange offer, and we cannot assure you that the staff of the SEC would make a
similar determination with respect to the Exchange Notes as it has in other interpretations to third parties.
Each holder of the
Restricted Notes who wishes to exchange such Restricted Notes for the related Exchange Notes in the exchange offer represents that:
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it is acquiring the Exchange Notes in its ordinary course of business;
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it is not our affiliate, as defined in Rule 405 under the Securities Act;
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it is not participating, and does not intend to participate, and has no arrangement or understanding with any person to participate, in a distribution, as defined in the Securities Act, of the Exchange Notes
to be issued in the exchange offer; and
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if it is a broker-dealer, it will receive the Exchange Notes for its own account in exchange for the Restricted Notes that were acquired by it as a result of its market-making or other trading activities, that it will
deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the Exchange Notes it receives and it has not entered into any agreement or understanding with us or any of our affiliates, as defined
in Rule 405 under the Securities Act, to participate in a distribution, as defined in the Securities Act, of the Exchange Notes. For further information regarding resales of the Exchange Notes by participating broker-dealers, see the
discussion under the caption Plan of Distribution.
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As discussed above, in connection with resales of the
Exchange Notes, any participating broker-dealer must deliver a prospectus meeting the requirements of the Securities Act. The staff of the SEC has taken the position
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that participating broker-dealers may fulfill their prospectus delivery requirements with respect to the Exchange Notes, other than a resale of an unsold allotment from the original sale of the
Restricted Notes, with the prospectus contained in the exchange offer registration statement. Under the registration rights agreement, we have agreed, for a period of 90 days following the expiration of the exchange offer, to make available a
prospectus meeting the requirements of the Securities Act to any participating broker-dealer for use in connection with any resale of any Exchange Notes acquired in the exchange offer.
Neither we nor our board of directors make any recommendation to holders of the Restricted Notes as to whether to tender or refrain from
tendering all or any portion of their Restricted Notes pursuant to the exchange offers. Moreover, no one has been authorized to make any such recommendation. Holders of the Restricted Notes must make their own decision whether to tender pursuant to
the exchange offers and, if so, the aggregate amount of the Restricted Notes to tender, after reading this prospectus and the letter of transmittal and consulting with their advisors, if any, based on their own financial position and requirements.
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DESCRIPTION OF THE EXCHANGE NOTES
The following description is a summary of the material provisions of the indenture. It does not restate that agreement in its entirety. We
urge you to read the indenture because it contains additional information that may be of importance to you. A copy of the indenture is available upon request to the Company at the address indicated under the section entitled Where You Can Find
More Information. The indenture contains provisions that define your rights under the applicable series of Exchange Notes. In addition, the indenture governs the obligations of the Company under the Exchange Notes.
General
You can find the definitions of
certain terms used in this description under the caption Certain Definitions. Defined terms used in this description but not defined below under the caption Certain Definitions or elsewhere in this description
have the meanings assigned to them in the indenture. In this description, the
Company
refers only to Mylan N.V.
On
December 9, 2015, we completed the private offering of $500,000,000 aggregate principal amount of 3.000% Senior Notes due 2018 (the
2018 Restricted Notes
) and $500,000,000 aggregate principal amount of 3.750% Senior Notes due 2020
(the
2020 Restricted Notes
and, together with the 2018 Restricted Notes, the
Restricted Notes
). As part of that offering, we and Mylan Inc. entered into a registration rights agreement with the initial
purchasers of those Restricted Notes in which we agreed, among other things, to complete an exchange offer for the Restricted Notes. We refer to the $500,000,000 aggregate principal amount of 3.000% Senior Notes due 2018, the issuance of which has
been registered under the Securities Act of 1933, as amended (the
Securities Act
), as the
2018 Exchange Notes
and the $500,000,000 aggregate principal amount of 3.750% Senior Notes due 2020, the issuance of
which has been registered under the Securities Act, as the
2020 Exchange Notes
. We collectively refer to the 2018 Exchange Notes and the 2020 Exchange Notes as the
Exchange Notes
or the
notes
.
Each of the 2018 Exchange Notes and the 2020 Exchanges Notes are hereinafter sometimes referred to as a
series
of notes.
The Exchange Notes will be issued under an indenture, dated as of December 9, 2015, among the Company, Mylan Inc., a Pennsylvania corporation,
as Guarantor of the notes upon issuance, the other Guarantors from time to time party thereto and The Bank of New York Mellon, as trustee (the
Trustee
), as amended and supplemented from time to time (the
indenture
).
The 2018 Restricted Notes were initially issued in an aggregate principal amount of $500,000,000, and the
2020 Restricted Notes were initially issued in an aggregate principal amount of $500,000,000. The 2018 Exchange Notes will initially be issued in an aggregate principal amount of up to $500,000,000, and the 2020 Exchange Notes will initially be
issued in an aggregate principal amount of up to $500,000,000.
For each series of notes, the Company may issue additional notes of that
series in an unlimited aggregate principal amount at any time and from time to time under the same indenture. These additional notes of any series will have substantially the same terms as the notes of such series offered hereby in all respects so
that the additional notes of such series may be consolidated and form a single series with the other outstanding notes of such series and will be treated as a single class for all purposes under the indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase;
provided
that any additional notes that have the same CUSIP, ISIN or other identifying number as the outstanding notes of a series must be fungible with the outstanding notes of that series for
U.S. federal income tax purposes.
The Company will issue each series of the Exchange Notes only in fully registered form, without
coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Trustee will initially act as paying agent and registrar for the Exchange Notes. The Exchange Notes may be presented for registration of transfer and
exchange at the offices of the registrar, which initially will be the Trustees corporate trust office.
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The Company may change any paying agent or registrar without notice to holders of the Exchange Notes, and the Company may act as paying agent or registrar.
The Exchange Notes will not be subject to a sinking fund provision.
Any 2018 Restricted Notes that remain outstanding after the completion of the exchange offer, together with the 2018 Exchange Notes issued in
connection with the exchange offer, will be treated as a single class of securities under the indenture. Any 2020 Restricted Notes that remain outstanding after the completion of the exchange offer, together with the 2020 Exchange Notes issued in
connection with the exchange offer, will be treated as a single class of securities under the indenture.
Exchange Notes versus Restricted Notes
The terms of the Exchange Notes are identical in all material respects to those of the outstanding Restricted Notes, except that the
transfer restrictions, registration rights and additional interest provisions relating to the Restricted Notes do not apply to the Exchange Notes. The Exchange Notes of a given series will evidence the same debt as the Restricted Notes of such
series and will be issued under the same indenture and be entitled to the same benefits under the indenture as the Restricted Notes being exchanged. In addition, the Exchange Notes bear different CUSIP numbers than the corresponding series of
Restricted Notes.
Principal, Maturity and Interest
The 2018 Exchange Notes will mature on December 15, 2018.
The 2020 Exchange Notes will mature on December 15, 2020.
Interest on the 2018 Exchange Notes will accrue at a rate of 3.000% per annum and will be payable semi-annually in arrears on June 15 and
December 15, commencing on December 15, 2016, and will be computed on the basis of a 360-day year of twelve 30-day months. Interest on the 2018 Exchange Notes will accrue from the date interest on the 2018 Restricted Notes was most recently paid.
The Company will pay interest to those persons who were holders of record on the June 1 and December 1, as the case may be, immediately preceding each interest payment date.
Interest on the 2020 Exchange Notes will accrue at a rate of 3.750% per annum and will be payable semi-annually in arrears on June 15 and
December 15, commencing on December 15, 2016, and will be computed on the basis of a 360-day year of twelve 30-day months. Interest on the 2020 Exchange Notes will accrue from the date interest on the 2020 Restricted Notes was most recently paid.
The Company will pay interest to those persons who were holders of record on the June 1 and December 1, as the case may be, immediately preceding each interest payment date.
If any interest payment date for the notes falls on a day that is not a Business Day, then payment of interest may be made on the next
succeeding Business Day and no interest will accrue because of such delayed payment. Additional interest may accrue on the notes in certain circumstances pursuant to the registration rights agreement.
Methods of Receiving Payments on the Notes
Payments on the notes will be made at the office or agency of the paying agent and registrar unless the Company elects to make interest
payments by check mailed to the holders at their respective addresses set forth in the register of holders;
provided
that all payments of principal, premium, if any, and interest with respect to notes represented by one or more global notes
registered in the name of or held by The Depository Trust Company or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the holder or holders thereof.
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Ranking
The notes of each series will be senior unsecured obligations of the Company and will:
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rank
pari passu
in right of payment with all existing and future senior Indebtedness of the Company that is not expressly subordinated to the notes;
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rank senior in right of payment to any future Indebtedness of the Company that is expressly subordinated to the notes;
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be structurally subordinated to all Indebtedness and other liabilities, including trade payables, of the Companys subsidiaries that are not Guarantors; and
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be effectively subordinated to all existing and future secured Indebtedness of the Company to the extent of the value of the collateral securing such Indebtedness.
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The Guarantees of each series will be senior unsecured obligations of each Guarantor and will:
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rank
pari passu
in right of payment with all existing and future senior Indebtedness of such Guarantor that is not expressly subordinated to such Guarantors Guarantee of the notes;
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rank senior in right of payment to any future Indebtedness of such Guarantor that is expressly subordinated to such Guarantors Guarantee of the notes; and
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be effectively subordinated to all existing and future secured Indebtedness of such Guarantor to the extent of the value of the collateral securing such Indebtedness.
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As of September 30, 2016, (i) the amount of senior unsecured indebtedness of the Company and Mylan Inc., the only Guarantor of the notes upon issuance, was
approximately $13.3 billion and (ii) the total liabilities of our subsidiaries (including that of Meda and its subsidiaries) that will not be Guarantors of the notes upon issuance, including trade payables, was approximately $10.4 billion.
Note Guarantees
The notes will be
guaranteed by Mylan Inc. upon issuance.
Mylan Inc.s Guarantee of the Companys Indenture Obligations will be released:
(1) upon a sale or disposition of Mylan Inc. in a transaction that complies with the indenture such that Mylan Inc. ceases to
be a Subsidiary of the Company; or
(2) if we exercise our Legal Defeasance option or Covenant Defeasance option as
described below under the caption Defeasance or if our obligations under the indenture are discharged in accordance with the terms of the indenture; or
(3) upon the earlier to occur of (1) the release of the Companys Guarantee under all applicable Mylan Inc. Debt and (2)
Mylan Inc. no longer having any obligations in respect of any Mylan Inc. Debt.
If any Subsidiary of the Company (other than a Receivables
Entity) becomes a guarantor or an obligor in respect of any Triggering Indebtedness, the Company shall cause such Subsidiary to enter into a supplemental indenture pursuant to which such Subsidiary shall agree to Guarantee the Companys
Indenture Obligations, fully and unconditionally and on a senior basis,
provided
that in no event shall a Subsidiary of the Company that is not a Guarantor of the notes on the Issue Date be required to provide a Guarantee of the
Companys Obligations under the notes if the Company reasonably determines that such Guarantee is prohibited by, or would be unduly burdensome under, applicable laws or would result in adverse tax consequences to the Company or any of its
Subsidiaries.
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Any Guarantee of the Companys Indenture Obligations by any Guarantor will be released:
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upon a sale or disposition of such Guarantor in a transaction that complies with the indenture such that such Guarantor ceases to be a Subsidiary of the Company; or
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if we exercise our Legal Defeasance option or Covenant Defeasance option as described below under the caption Defeasance or if our obligations under the indenture are discharged in accordance with the
terms of the indenture; or
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upon the earliest to occur of (1) the release of such Guarantors Guarantee under all applicable Triggering Indebtedness, (2) such Guarantor no longer having any obligations in respect of all applicable Triggering
Indebtedness and (3) the issuer(s) and/or borrower(s) of the applicable Triggering Indebtedness no longer having any obligations with respect to such Triggering Indebtedness.
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Each Guarantee will be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by the applicable Guarantor
without rendering the Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. See Risk FactorsRisks
Relating to the Exchange Offer and the Exchange NotesUnder certain circumstances, a court could cancel the Exchange Notes and guarantees under fraudulent conveyance laws.
Optional Redemption
Optional Redemption for the
2018 Exchange Notes
At any time and from time to time prior to the maturity date, we may redeem some or all of the 2018 Exchange
Notes, upon not less than 30 nor more than 60 days prior notice, at a price equal to the greater of:
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100% of the aggregate principal amount of any 2018 Exchange Notes being redeemed, and
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the sum of the present values of the remaining scheduled payments of principal and interest on the 2018 Exchange Notes being redeemed that would be due to their maturity date, not including unpaid interest accrued to,
but excluding, the redemption date, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points with respect to any 2018 Exchange Notes,
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plus, in each case, unpaid interest on the 2018 Exchange Notes being redeemed accrued to, but excluding, the redemption date.
We will, however, pay the interest installment due on any interest payment date that occurs on or before a redemption date to the holders of
the affected 2018 Exchange Notes as of the close of business on the applicable regular record date.
Optional Redemption for the 2020 Exchange Notes
At any time and from time to time prior to the date that is one month prior to their maturity date, we may redeem some or all of
the 2020 Exchange Notes, upon not less than 30 nor more than 60 days prior notice, at a price equal to the greater of:
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100% of the aggregate principal amount of any 2020 Exchange Notes being redeemed, and
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the sum of the present values of the remaining scheduled payments of principal and interest on the 2020 Exchange Notes being redeemed that would be due if the 2020 Exchange Notes matured on the date that is one month
prior to their maturity date, not including unpaid interest accrued to, but excluding, the redemption date, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 35 basis points with respect to any 2020 Exchange Notes,
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plus, in each case, unpaid interest on the 2020 Exchange Notes being redeemed accrued to, but excluding, the
redemption date.
On or after the date that is one month prior to their maturity date, the 2020 Exchange Notes will be redeemable in whole
at any time or in part, from time to time, at our option, upon at least 15 days but no more than 60 days prior written notice mailed to the registered holders of the 2020 Exchange Notes, at a redemption price equal to 100% of the principal amount of
the 2020 Exchange Notes to be redeemed plus accrued and unpaid interest thereon to, but excluding, the date of redemption.
We will,
however, pay the interest installment due on any interest payment date that occurs on or before a redemption date to the holders of the affected 2020 Exchange Notes as of the close of business on the applicable regular record date.
General Notes Optional Redemption Terms
The term
Comparable Treasury Issue
means the United States Treasury security or securities selected by an Independent
Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the notes being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of a comparable maturity to the remaining term of such notes.
The term
Comparable Treasury
Price
means, with respect to any redemption date:
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the average of the Reference Treasury Dealer Quotations provided to the Trustee from four Reference Treasury Dealers selected by the Company for the redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or
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if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations for the redemption date so obtained.
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The term
Independent Investment Banker
means one of the Reference Treasury Dealers appointed by the Company.
The term
Reference Treasury Dealer
means (A) to the extent such entity is a primary United States government
securities dealer, Goldman, Sachs & Co., Deutsche Bank Securities Inc., Mitsubishi UFJ Securities (USA), Inc., ING Financial Markets LLC, PNC Capital Markets LLC and DNB Markets, Inc. (or their affiliates and their respective successors),
provided
that if any of these Reference Treasury Dealers resigns or shall cease to be a primary United States government securities dealer, then we will substitute another primary United States government securities dealer and (B) any
other primary United States government securities dealer selected by the Company.
The term
Reference Treasury Dealer
Quotations
means, with respect to a Reference Treasury Dealer and any redemption date, the average, as determined by such Reference Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a
percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at approximately 3:30 p.m., New York City time, on the third Business Day preceding such redemption date.
The term
Treasury Rate
means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent
yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the notes of a
series called for redemption on the applicable redemption date.
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Selection and Notice of Redemption
If the Company redeems less than all of the notes of any series at any time, the Trustee will select notes of such series by lot on a
pro
rata basis
(or, in the case of notes issued in global form as described below under the caption Book-Entry, Delivery and Form, based on a method that most nearly approximates a
pro rata
selection as the Trustee deems fair and
appropriate) unless otherwise required by law or applicable stock exchange or depositary requirements.
The Company will redeem notes of
$2,000 or less in whole and not in part. The Company will cause notices of redemption to be mailed by first-class mail at least 30 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address.
The Company may provide in the notice that payment of the redemption price and performance of the Companys obligations with respect to the redemption or purchase may be performed by another person. Any notice may, at the Companys
discretion, be subject to the satisfaction of one or more conditions precedent.
If any note is to be redeemed in part only, the notice of
redemption that relates to that note will state the portion of the principal amount thereof that is to be redeemed. The Company will issue a new note in a principal amount equal to the unredeemed portion of the original note in the name of the
holder upon cancellation of the original note. Notes called for redemption become due on the date fixed for redemption. On and after such date, unless the Company defaults in payment of the redemption price on such date, interest ceases to accrue on
the notes or portions thereof called for such redemption.
Purchase of Notes Upon a Change of Control Repurchase Event
If a Change of Control Repurchase Event occurs with respect to a series of notes, each holder of notes of such series will have the right to
require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such holders notes of such series pursuant to a Change of Control offer (a
Change of Control
Offer
) on the terms set forth in the indenture, except that the Company shall not be obligated to repurchase the notes of any series pursuant to this covenant in the event that the Company has exercised the right to redeem all of the notes
of such series as described above under the caption Optional Redemption. In the Change of Control Offer, the Company will offer to purchase all of the notes of such series at a purchase price (the
Change of Control
Purchase Price
) in cash in an amount equal to 101% of the principal amount of such series of notes, plus accrued but unpaid interest, if any, to (but not including) the date of purchase (the
Change of Control Purchase
Date
) (subject to the rights of holders of record on relevant record dates to receive interest due on the relevant interest payment date if the notes of such series have not been redeemed prior to such record date).
Within 30 days after any Change of Control Repurchase Event with respect to a series of notes or, at the Companys option, prior to such
Change of Control but after it is publicly announced;
provided
that a definitive agreement is in place for such Change of Control, the Company must notify the Trustee and give written notice of the Change of Control Repurchase Event to each
holder of notes of such series, by first-class mail, postage prepaid, at its address appearing in the security register. The notice must state, among other things:
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that a Change of Control Repurchase Event has occurred or may occur with respect to such series of notes and the date of such event;
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the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act;
provided
that the purchase date may not occur prior to the Change of Control;
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that any note of such series not tendered will continue to accrue interest;
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that, unless the Company defaults in the payment of the Change of Control Purchase Price, any notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control
Purchase Date; and
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other procedures that a holder of notes of such series must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
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If a Change of Control Offer is made, the Company may not have available funds sufficient to pay the Change of Control Purchase Price for all
of the notes that might be delivered by holders of the notes seeking to accept the Change of Control Offer. The Companys failure to make or consummate the Change of Control Offer or pay the Change of Control Purchase Price when due will give
the Trustee and the holders of the notes the rights described under Events of Default.
In addition to the
Companys obligations under the indenture with respect to the notes in the event of a Change of Control Repurchase Event, the Term Credit Agreements and the Revolving Credit Agreement provide for an event of default upon a Change in Control (as
defined therein), which obligates Mylan Inc. and the Company, as a guarantor of such indebtedness, to repay amounts outstanding under such indebtedness upon an acceleration of the indebtedness issued thereunder. As a result, the Company may not be
able to repurchase the notes and satisfy the Companys obligations under the Companys other indebtedness following a Change of Control Repurchase Event under the indenture. See Risk FactorsRisks Relating to the Exchange Offer
and the Exchange NotesWe may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture governing the Exchange Notes.
The Company may exercise its optional right to redeem all or a portion of any series of notes, as described above under Optional
Redemption, even if a Change of Control Offer is made.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of all or substantially all of the Companys assets. The phrase all or substantially all as used in the definition of Change of Control has not been
interpreted under New York law (which is the governing law of the indenture) to represent a specific quantitative test. Therefore, if holders of the notes elected to exercise their rights under the indenture and the Company elected to contest
such election, it is not clear how a court interpreting New York law would interpret such phrase.
The existence of a holders right
to require the Company to repurchase such holders notes upon a Change of Control Repurchase Event may deter a third party from acquiring the Company in a transaction which constitutes a Change of Control.
The provisions of the indenture will not afford holders of the notes the right to require the Company to repurchase the notes in the event of
a highly leveraged transaction or certain transactions with the Companys management or Affiliates, including a reorganization, restructuring, merger or similar transaction (including, in certain circumstances, an acquisition of the Company by
management or its affiliates) involving the Company that may adversely affect holders of the notes, if such transaction is not a transaction defined as a Change of Control Repurchase Event.
The Company will comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of its compliance with such securities laws or regulations.
The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with the requirements described in the indenture applicable to a Change of Control Offer made by the Company and purchases all notes validly tendered and not withdrawn under
such Change of Control Offer.
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Certain Covenants
The indenture contains covenants including, among others, those summarized below.
Restrictions on Sale Leaseback Transactions
. Neither the Company nor any Domestic Subsidiary of the Company will enter into any Sale
Leaseback Transaction with respect to any property unless:
(1) the Company or such Domestic Subsidiary would be entitled
to create a Lien on such property securing Attributable Debt without equally and ratably securing the notes pursuant to the covenant described below under the caption Limitation on Liens; and
(2) the gross proceeds received by the Company or any such Domestic Subsidiary in connection with such Sale Leaseback
Transaction are at least equal to the Fair Market Value of such property.
Notwithstanding the foregoing, the Company or any Domestic
Subsidiary of the Company may enter into a Sale Leaseback Transaction if (x) during the twelve months following the effective date of the Sale Leaseback Transaction, the Company or any such Domestic Subsidiary applies an amount equal to the
greater of the net proceeds of such sale or transfer and the Fair Market Value of the property that the Company or such Domestic Subsidiary leases in the transaction to (i) the voluntary retirement of the notes or other Indebtedness of the
Company or any Domestic Subsidiary of the Company,
provided
that such Indebtedness ranks
pari passu
or senior to the notes, or (ii) the acquisition, purchase, construction, development, extension or improvement of any property or
assets of the Company or any Domestic Subsidiary of the Company used or to be used by or for the benefit of the Company or any Domestic Subsidiary of the Company in the ordinary course of business, or (y) the Company or such Domestic Subsidiary
equally and ratably secures the notes as described below under the caption Limitation on Liens.
Limitation on
Liens
. The Company will not, and will not permit any Subsidiary of the Company to, directly or indirectly, Incur or permit to exist any Lien (the
Initial Lien
) of any nature whatsoever on any of its properties (including
Capital Stock of a Subsidiary of the Company), whether owned on the Issue Date or thereafter acquired, securing any Indebtedness of the Company or a Domestic Subsidiary of the Company, other than Permitted Liens, without effectively providing that
the notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured.
Any Lien created for the benefit of the holders of the notes pursuant to the preceding sentence shall provide by its terms that such Lien
shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
Additional
Guarantees
. If any Subsidiary of the Company that is not a Guarantor of the notes (other than a Receivables Entity) becomes a guarantor or an obligor in respect of any Triggering Indebtedness within 10 Business Days of such event, the Company
shall cause such Subsidiary to enter into a supplemental indenture pursuant to which such Subsidiary shall agree to Guarantee the Companys Obligations under the notes, fully and unconditionally and on a senior basis,
provided
that in no
event shall a Subsidiary of the Company that is not a Guarantor of the notes on the Issue Date be required to provide a Guarantee of the Companys Obligations under the notes if the Company reasonably determines that such Guarantee is
prohibited by, or would be unduly burdensome under, applicable laws or would result in adverse tax consequences to the Company or any of its Subsidiaries.
Each Guarantee will be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by the applicable Guarantor
without rendering the Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. See Risk FactorsRisks
Relating to the Exchange Offer and the Exchange NotesUnder certain circumstances, a court could cancel the Exchange Notes and guarantees under fraudulent conveyance laws.
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Notwithstanding the foregoing, any Guarantee by any Guarantor will be released:
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upon a sale or disposition of such Guarantor in a transaction that complies with the indenture such that such Guarantor ceases to be a Subsidiary of the Company; or
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if we exercise our Legal Defeasance option or our Covenant Defeasance option as described below under the caption Defeasance or if our obligations under the indenture are discharged in accordance with
the terms of indenture; or
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upon the earliest to occur of (1) the release of such Guarantors Guarantee under all applicable Triggering Indebtedness, (2) such Guarantor no longer having any obligations in respect of all applicable
Triggering Indebtedness and (3) the issuer(s) and/or borrower(s) of the applicable Triggering Indebtedness no longer having any obligations with respect to such Triggering Indebtedness.
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In addition, Mylan Inc.s Guarantee of the Companys Indenture Obligations, which will be effective on the Issue Date, will be
released:
(1) upon a sale or disposition of Mylan Inc. in a transaction that complies with the indenture such that Mylan
Inc. ceases to be a Subsidiary of the Company; or
(2) if we exercise our Legal Defeasance option or Covenant Defeasance
option as described below under the caption Defeasance or if our obligations under the indenture are discharged in accordance with the terms of the indenture; or
(3) upon the earlier to occur of (1) the release of the Companys Guarantee under all applicable Mylan Inc. Debt and
(2) Mylan Inc. no longer having any obligations in respect of any Mylan Inc. Debt.
Consolidation, Merger and Sale of Assets
The Company will not consolidate with any other entity or accept a merger of any other entity into the Company or permit the Company to be
merged into another entity, or sell or lease all or substantially all its assets to another entity, unless:
(1) either the
Company shall be the continuing entity or the successor, transferee or lessee entity, if other than the Company (the
Successor Company
), shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
all the obligations of the Company under the notes and the indenture;
(2) immediately after such transaction, the Company
or the Successor Company would not be in Default in the performance of any covenant or condition of the indenture; and
(3)
the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale or lease and such supplemental indenture comply with the indenture.
The Successor Company will be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under the indenture, and the predecessor Company, except in the case of a lease, shall be released from all obligations under the indenture and the notes.
Additional Amounts
All payments in
respect of the notes of any series by us, a paying agent, a guarantor or any other person on behalf of us, or any successor thereto (each, a
Payor
) shall be made free and clear of, and without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively,
Taxes
) unless such withholding or deduction is required by applicable law.
Where the withholding or deduction of Taxes is imposed, collected, withheld, assessed or levied by or on behalf of any jurisdiction in which
the Payor is incorporated or tax resident (and in the case of our paying agent, the jurisdiction through which the paying agent makes the payments on the notes), or any Governmental Authority or political subdivision thereof or therein having the
power to tax (a
Relevant Jurisdiction
) the Payor
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will, subject to the exceptions and limitations set forth below, pay as additional interest on the notes of an applicable series such additional amounts (
Additional Amounts
) as
are necessary so that the net payment by us or a paying agent or other Payor of the principal of, premium, if any, and interest on such notes, after deduction for any present or future tax, assessment or governmental charge of a Relevant
Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount that would have been payable in respect of such notes had no withholding or deduction been required. Our obligation to pay Additional Amounts shall
not apply:
(1) to any Taxes that are only payable because a present or former type of connection exists or existed between
the holder or beneficial owner of the notes of any series and a Relevant Jurisdiction other than a connection related solely to purchase or ownership of notes of such series;
(2) to any holder that is not the sole beneficial owner of notes of a series, or a portion thereof, or that is a fiduciary or
partnership, but only to the extent that the beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner,
beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(3) to any Taxes
that are imposed or withheld because the holder or beneficial owner failed to accurately comply with a request from us or any paying agent to meet certification, identification or information reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of notes of a series or to satisfy any information or reporting requirement, or to present the relevant note (where presentation is required), if compliance with such action is required as a
precondition to exemption from, or reduction in, such tax, assessment or other governmental charge by the Relevant Jurisdiction;
(4) to any Taxes that are imposed other than by withholding or deduction by us or a paying agent from the payment under, or
with respect to, the note;
(5) to any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or
similar Taxes;
(6) to any Taxes where withholding or deduction of such Taxes is imposed on a payment to an individual and
is required to be made pursuant to European Union Council Directive 2003/48/EC of June 3, 2003, European Union Council Directive 2014/48/EU of March 24, 2014, or any other European Union Directive on the taxation of savings income in the form of
interest payments implementing the conclusions of the ECONFIN (European Union Economic and Finance Ministers) Council Meeting of 26-27 November 2000 or any subsequent Council Meeting amending or supplementing those conclusions, or any law
implementing or complying with, or introduced in order to conform to such Directive;
(7) to any Taxes where withholding or
deduction of such Taxes is imposed on a note of any series presented for payment by or on behalf of a beneficial owner who would have been able to avoid the withholding or deduction by presenting the note (where presentation is required) to another
paying agent in a member state of the European Union;
(8) to any Taxes to the extent such Taxes were imposed as a result
of the presentation of a note for payment (where presentation is required) more than 30 days after the relevant amount is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional
Amounts had the note been presented on the last day of such 30-day period); or
(9) in the case of any combination of the
above items.
In addition, any amounts to be paid on the notes of any series will be paid net of any deduction or withholding imposed or
required pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the
Code
), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to
Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no additional
amounts will be required to be paid on account of any such deduction or withholding.
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The notes are subject in all cases to any tax, fiscal or other law or regulation or
administrative or judicial interpretation applicable. Except as specifically provided under this heading Additional Amounts and under the heading Tax Redemption, we do not have to make any payment with respect to
any Taxes imposed by any Governmental Authority or political subdivision having the power to tax.
Tax Redemption
If (a) a Payor becomes or will become obligated to pay Additional Amounts with respect to any notes of any series (as described under the
heading Additional Amounts above) as a result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction, or any change in the official interpretation or application of the laws or regulations of a
Relevant Jurisdiction, which change or amendment becomes effective after December 4, 2015 (or, if the applicable Relevant Jurisdiction became a Relevant Jurisdiction after December 4, 2015, such later date), and (b) such obligation cannot be
avoided by our taking reasonable measures available to us, we may at our option, having given not less than 30 days notice to the holders of such notes (which notice shall be irrevocable), redeem all, but not a portion of, notes of the applicable
series at any time at their principal amount together with interest accrued to, but excluding, the date of redemption,
provided
that no such notice of redemption shall be given earlier than 30 days prior to the earliest date on which we would
be obliged to pay such Additional Amounts were a payment in respect of the notes of such series then due. Prior to the publication of any notice of redemption pursuant to this paragraph, we shall deliver to the Trustee (i) a certificate stating
that the requirements referred to in (a) and (b) above are satisfied, and (ii) an Opinion of Counsel to the effect that we have or will become obliged to pay such Additional Amounts as a result of the change or amendment, in each case
to be held by the Trustee and made available for viewing at the offices of the Trustee on written request by any holder of the notes of the applicable series.
Reports
Notwithstanding that the Company
may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the Commission and provide the Trustee with such annual and quarterly reports and such information, documents and other
reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and reports to be so filed and provided at the times specified for the filing of such
information, documents and reports under such Sections;
provided
,
however
, that (a) the Company will not be required to provide the Trustee with any such information, documents and reports that are filed with the Commission and
(b) the Company will not be so obligated to file such information, documents and reports with the Commission if the Commission does not permit such filings;
provided further
,
however
, that if the Commission does not permit such
filings, the Company will be required to provide to holders of notes any such information, documents or reports that are not so filed.
Notwithstanding anything herein to the contrary, in the event that the Company fails to comply with its obligation to file or provide such
information, documents and reports as required hereunder, the Company will be deemed to have cured such Default for purposes of clause (4) under Events of Default upon the filing or provision of all such information, documents
and reports required hereunder prior to the expiration of 120 days after written notice to the Company of such failure from the Trustee or the holders of at least 25% of the principal amount of the applicable series of notes.
Notwithstanding the foregoing, the information, documents and reports required pursuant to the indenture may, at the option of the Company,
instead be those of any direct or indirect parent entity of the Company so long as such parent entity fully and unconditionally guarantees, by execution of a supplemental indenture, the obligations of the Company in respect of the notes and such
parent entity and the Company comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or any successor provision).
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Events of Default
With respect to the notes of any series, an
Event of Default
is defined in the indenture as:
(1) a failure to pay interest on the notes of such series that continues for a period of 30 days after payment is due;
(2) a failure to pay the principal or premium, if any, on the notes of such series when due upon maturity, redemption,
acceleration or otherwise;
(3) a failure to comply with the covenant described above under the caption
Consolidation, Merger and Sale of Assets;
(4) a failure to comply with (x) any of the
Companys other agreements contained in the indenture and applicable to the notes of such series (other than (i) a failure that is subject to the foregoing clause (1), (2) or (3) or (ii) a failure to comply with the covenant
described under the caption Reports) for a period of 60 days after receipt by the Company of written notice of such failure from the Trustee (or receipt by the Company and the Trustee of written notice of such failure from the
holders of at least 25% of the principal amount of the applicable series of notes) or (y) the requirements set forth in the covenant described under the caption Reports for a period of 120 days after receipt by the Company of
a written notice of such failure from the Trustee (or receipt by the Company and the Trustee of written notice of such failure from the holders of at least 25% of the principal amount of the applicable series of notes);
(5) one or more defaults shall have occurred under any of the agreements, indentures or instruments under which the Company or
any Significant Subsidiary has outstanding Indebtedness in excess of $150.0 million, individually or in the aggregate, and either (a) such default results from the failure to pay such Indebtedness at its stated final maturity and such default
has not been cured or the Indebtedness repaid in full within 20 days of the default or (b) such default or defaults have resulted in the acceleration of the maturity of such Indebtedness and such acceleration has not been rescinded or such
Indebtedness repaid in full within 20 days of the acceleration;
(6) one or more judgments or orders that exceed $150.0
million in the aggregate (net of amounts covered by insurance or bonded) for the payment of money have been entered by a court or courts of competent jurisdiction against the Company or any Significant Subsidiary and such judgment or judgments have
not been satisfied, stayed, annulled or rescinded within 60 days after such judgment or judgments become final and nonappealable;
(7) any Guarantee by a Significant Subsidiary of the Companys Indenture Obligations under the notes shall for any reason
cease to be, or shall for any reason be held in any judicial proceeding not to be, or asserted in writing by any Significant Subsidiary or the Company not to be, in full force and effect and enforceable in accordance with its terms, except to the
extent contemplated by the indenture and any such Guarantee by such Significant Subsidiary of the Companys Indenture Obligations under the notes, and any such Default continues for 10 days; and
(8) certain events of bankruptcy, insolvency or reorganization relating to the Company or any of its Significant Subsidiaries.
The indenture provides that if there is a continuing Event of Default (other than an Event of Default under clause (8) above with
respect to the Company) with respect to any series of notes, either the Trustee or the holders of at least 25% of the outstanding principal amount of the notes of such series may declare the principal amount of all of the notes of such series to be
due and payable immediately. However, at any time after the Trustee or the holders, as the case may be, declare an acceleration with respect to the notes of such series, but before the applicable person has obtained a judgment or decree based on
such acceleration, the holders of a majority in principal amount of the outstanding notes of such series may, under certain conditions, cancel such acceleration if the Company has cured all Events of Default (other than the nonpayment of accelerated
principal) with respect to the notes of such series or all such Events of Default have been waived as provided in the
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indenture. For information as to waiver of defaults, see Modification and Waiver. If an Event of Default specified in clause (8) above with respect to the Company occurs,
all outstanding notes shall become due and payable without any further action or notice.
The indenture provides that, subject to the
duties of the Trustee to act with the required standard of care, if there is a continuing Event of Default, the Trustee need not exercise any of its rights or powers under the indenture at the request or direction of any of the holders of notes of
any series, unless such holders have offered to the Trustee security or indemnity. Subject to such provisions for security or indemnification of the Trustee and certain other conditions, the holders of a majority in principal amount of the
outstanding notes of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power the Trustee holds with respect to the notes of such
series.
No holder of any note of a series will have any right to institute any proceeding with respect to the indenture or for any remedy
unless:
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the Trustee has failed to institute such proceeding for 60 days after the holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the notes of such series;
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the holders of at least 25% in principal amount of the outstanding notes of such series have made a written request, and offered indemnity, to the Trustee to institute such proceeding as Trustee; and
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the Trustee has not received from the holders of a majority in principal amount of the outstanding notes of such series a direction inconsistent with such request.
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However, the holder of any note will have an absolute and unconditional right to receive payment of the principal of, and any premium or
interest on, such note on or after the date or dates they are to be paid as expressed in such note and to institute suit for the enforcement of any such payment.
The Company is required to furnish to the Trustee annually a statement as to the absence of certain defaults under the indenture. The
indenture provides that the Trustee need not provide holders of the notes notice of any Default (other than the nonpayment of principal or any premium or interest) if it considers it in the interest of the holders of the notes not to provide such
notice.
Modification and Waiver
The
Company, the Guarantors and the Trustee may modify or amend the indenture without the consent of any holder, to:
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cure any ambiguity, defect, mistake or inconsistency in the indenture;
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provide for uncertificated notes in addition to, or in place of, certificated notes;
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comply with the provisions described above under the captions Consolidation, Merger and Sale of Assets or Certain CovenantsAdditional Guarantees;
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evidence and provide for the acceptance of appointment by a successor Trustee;
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if required by the requirements of the Commission, comply with any requirements of the Commission in connection with the qualification of the indenture under the Trust Indenture Act;
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make any change in any series of notes that does not adversely affect in any material respect the interests of the noteholders of such series;
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add covenants for the benefit of the holders or to surrender any right or power conferred upon the Company or any current or future Guarantor;
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secure any series of notes;
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55
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provide for the issuance of additional notes of any series in accordance with the limitations set forth in the indenture;
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conform the text of the indenture or the notes to any provision of this Description of the Exchange Notes; and
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allow any future Guarantor to execute a supplemental indenture and/or Subsidiary Guarantee with respect to the notes of any series.
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The Company, the Guarantors and the Trustee may modify or amend the indenture with the consent of the holders of a majority of the principal
amount of then outstanding notes of a series affected by the modification or amendment. However, no such modification or amendment may, without the consent of each holder of notes of a series affected thereby:
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extend the due date of the principal of, or any installment of principal of or interest on, the notes of such series;
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reduce the principal amount of, or any premium or interest rate on, the notes of such series;
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change the place or currency of payment of the principal of, or any premium or interest on, the notes of such series;
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reduce the amount payable upon the redemption of any note of such series;
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impair the right to institute suit for the enforcement of any payment on or with respect to the notes of such series after the due date thereof; or
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reduce the percentage in principal amount of the notes of such series then outstanding, the consent of whose holders is required for modification or amendment of the indenture, for waiver of compliance with certain
provisions of the indenture or for waiver of certain defaults.
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The holders of a majority of the principal amount of then
outstanding notes of a series may waive future compliance by the Company with certain restrictive covenants of the indenture applicable to such series of notes. The holders of at least a majority in principal amount of then outstanding notes of any
series of notes may waive any past default under the indenture with respect to such series, except a failure by the Company to pay the principal of, or any premium or interest on, any notes of such series or a provision that cannot be modified or
amended without the consent of the holders of all outstanding notes of such series.
In determining whether the holders of the required
principal amount of a series of notes have concurred in any direction, notice, waiver or consent, notes owned by the Company or any Subsidiary of the Company, or by any Affiliate of the Company or any Subsidiary of the Company, will be considered as
though not outstanding, except that for the purposes of determining whether the Trustee will be protected in conclusively relying on any such direction, notice, waiver or consent, only notes that a responsible officer of the Trustee actually knows
are so owned will be so disregarded.
No Personal Liability of Directors, Officers, Employees and Shareholders
No director, officer, employee or shareholder of the Company or any of its Subsidiaries will have any liability for any of the Companys
or any Guarantors obligations under the notes or the indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of notes by accepting a note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the notes.
Defeasance
The Company may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors discharged with respect to
the outstanding notes of any series (Legal Defeasance).
56
Legal Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire
indebtedness represented by the notes of such series and the related Guarantees, and the indenture shall cease to be of further effect as to all outstanding notes of such series and the related Guarantees, except as to:
(1) the rights of holders of notes of such series issued under the indenture to receive payments in respect of the principal
of, premium, if any, and interest on such notes when such payments are due solely out of the trust created pursuant to the indenture;
(2) the Companys obligations with respect to the notes of such series concerning issuing temporary notes, registration of
notes, mutilated, destroyed, lost or stolen notes, and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trust, duties, indemnities, and immunities of the Trustee, and the Companys obligation in
connection therewith; and
(4) the Legal Defeasance and Covenant Defeasance provisions of the indenture.
In addition, the Company may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors released with
respect to most of the covenants under the indenture with respect to the outstanding notes of any series, except as described otherwise in the indenture (Covenant Defeasance), and thereafter any omission to comply with such obligations
shall not constitute a Default or Event of Default with respect to the notes of such series. In the event Covenant Defeasance occurs, all Events of Default (other than those relating to non-payment, bankruptcy, receivership, rehabilitation and
insolvency events pertaining to the Company) no longer apply. The Company may exercise its Legal Defeasance option regardless of whether it previously exercised Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the notes of any series:
(1) the Company must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the holders, U.S.
Dollars, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountants selected by
the Company, to pay the principal of, premium, if any, and interest on the notes of such series when due;
(2) in the case
of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of notes of such series will not recognize income, gain or loss for U.S. federal income tax purposes solely as a
result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred, which opinion must be based either on
a change in the applicable U.S. federal income tax laws or regulations occurring after the date hereof, or the Company having received a ruling from, or published by, the Internal Revenue Service to that effect;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the beneficial owners of notes of such series will not recognize income, gain or loss for U.S. federal income tax purposes solely as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if the Covenant Defeasance had not occurred;
(4) no Default
or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit (and any similar concurrent deposit relating to other Indebtedness) or the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit; and
(5) the Company shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for, or relating to, the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Notwithstanding the foregoing provisions of this section, the conditions set forth in the foregoing subsections (2), (3), (4) and
(5) need not be satisfied so long as, at the time the Company makes the deposit
57
described in subsection (1), (i) no Default under clauses (1), (2) and (8) under Events of Default has occurred and is continuing on the date of such deposit and
after giving effect thereto and (ii) either (x) a notice of redemption has been mailed providing for redemption of all the notes of such series not more than 60 days after such mailing and the requirements for such redemption shall have
been complied with or (y) the Stated Maturity of the notes of such series will occur within 60 days. If the conditions in the preceding sentence are satisfied, the Company shall be deemed to have exercised its Covenant Defeasance option.
If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the notes of
the applicable series when due, then the Companys obligations and the obligations of the Guarantors under the indenture will be revived with respect to such series and no such defeasance will be deemed to have occurred.
Satisfaction and Discharge
The indenture
will be discharged and will cease to be of further effect with respect to any series of notes (except as to rights of registration of transfer or exchange of notes and rights to receive principal of and premium, if any, and interest on such notes)
as to all outstanding notes of such series issued thereunder when:
(1) either:
(A) all the notes of such series that have been authenticated and delivered (except lost, stolen or destroyed notes which have
been replaced or paid and notes for whose payment money has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from this trust) have been delivered to the Trustee for
cancellation, or
(B) all notes of such series not delivered to the Trustee for cancellation otherwise (i) have become
due and payable, (ii) will become due and payable, or are to be called for redemption, within one year or (iii) have been called for redemption pursuant to the terms of the indenture and, in any case, the Company has deposited or caused to
be deposited with the Trustee as trust funds, in trust solely for the benefit of the holders of such notes, U.S. Dollars, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any
reinvestment of interest) to pay and discharge the entire Indebtedness (including all principal and accrued interest) on the notes of such series not theretofore delivered to the Trustee for cancellation,
(2) the Company has paid all sums payable by it under the indenture, and
(3) the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the
notes of such series at maturity or on the date of redemption, as the case may be.
In addition, the Company must deliver an
Officers Certificate and an Opinion of Counsel stating that all conditions precedent to satisfaction and discharge have been complied with.
Registration Rights
We are making the
exchange offer to satisfy our obligations under the registration rights agreement that we entered into with the initial purchasers of the Restricted Notes on December 9, 2015. The following description of certain material provisions of the
registration rights agreement is a summary only. Because this section is a summary, it does not describe every aspect of the registration rights agreement. This summary is subject to, and qualified in its entirety by reference to, all the provisions
of the registration rights agreement, a copy of which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part.
Pursuant to the registration rights agreement, the Company and Mylan Inc. agreed, for the benefit of the holders of the applicable series of
Restricted Notes, to use commercially reasonable efforts to file a registration statement (the Exchange Offer Registration Statement) with respect to an offer to exchange each series of
58
Restricted Notes for new notes with the same aggregate principal amount and terms identical in all material respects to the applicable series of Restricted Notes (except for the provisions
relating to the transfer restrictions and payment of additional interest); to cause the Exchange Offer Registration Statement to be declared effective by the SEC under the Securities Act; and to consummate the exchange offer not later than 365 days
following the date of issuance of the Restricted Notes (the Exchange Date). Such registration statement may also pertain to one or more other exchange offers unrelated to this notes offering.
In the event that the Company and the guarantors determine that the exchange offer would violate any applicable law or applicable
interpretations of the SEC or upon receipt of a written request (a Shelf Request) from any initial purchaser of the Restricted Notes representing that it holds Restricted Notes that are or were ineligible to be exchanged in the exchange
offer, we will, subject to certain conditions, at our own cost, use commercially reasonable efforts to:
(1) file a shelf registration statement covering
resales of the Restricted Notes;
(2) cause such shelf registration statement to be declared effective under the Securities
Act; and
(3) keep the shelf registration statement continuously effective until the earliest of the date (i) when a
registration statement with respect to such Restricted Notes has become effective under the Securities Act and such Restricted Notes have been exchanged or disposed of pursuant to such registration statement, (ii) when such Restricted Notes cease to
be outstanding, (iii) except in the case of Restricted Notes that are held by an initial purchaser and that are ineligible to be exchanged in the exchange offer, when the exchange offer is consummated, (iv) when such Restricted Notes are freely
tradeable, without restriction, under federal or state securities laws, (v) the date that is one year after the issue date of the Restricted Notes and (vi) the date when holders of the Restricted Notes, other than holders that are
affiliates (as defined in Rule 144) of the Company, are able to sell such Restricted Notes without restriction, and without reliance as to the availability of current public information, pursuant to Rule 144 under the Securities Act
(such date, the Registration Rights Expiration Date).
Additional Interest
As to any series of Restricted Notes, if
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(1)
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the exchange offer, with respect to such series of notes, is not completed on or prior to the Exchange Date,
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(2)
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the shelf registration statement, with respect to such series of notes, if required because the Company and the guarantors determine that the exchange offer would violate any applicable law or applicable interpretations
of the SEC, has not become effective on or prior to the Exchange Date,
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(3)
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if the Company receives a Shelf Request, the shelf registration statement required to be filed thereby has not become effective by the later of (a) the Exchange Date and (b) 90 days after delivery of such Shelf Request
or,
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(4)
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the shelf registration statement, if required by the registration rights agreement, has become effective and thereafter ceases to be effective or the prospectus contained therein ceases to be usable, in each case
whether or not permitted by the registration rights agreement, at any time prior to the Registration Rights Expiration Date, and such failure to remain effective or usable exists for more than 180 days (whether or not consecutive) in any 12-month
period,
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(each such event referred to in clauses (1) through (4), a Registration Default), then the interest rate on the
Restricted Notes of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day
period, in each case until and including the date such Registration Default ends, up to a maximum increase of 0.50% per annum (such interest referred to in clauses (i) and (ii) above, Additional
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Interest);
provided
that (A) in no event shall Additional Interest accrue after the Registration Rights Expiration Date, (B) if at any time more than one Registration Default has
occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate will apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration
Default occurred and ends on such next date that there is no Registration Default, (C) if a holder does not provide the information required in connection with the shelf registration statement in a timely manner and therefore such holders
notes are not included in any shelf registration, such holder will not be entitled to receive any Additional Interest with respect to its Restricted Notes, and (D) the interest rate increase is the sole remedy for any default under the registration
rights agreement.
Accordingly, the Company and the guarantors will not be required to pay Additional Interest under the registration
rights agreement once the notes become freely tradeable under Rule 144 under the Securities Act.
Governing Law
The indenture, the notes and Guarantees are governed by the laws of the State of New York.
The Trustee
The Bank of New York Mellon
is the Trustee under the indenture.
If the Trustee becomes a creditor of the Company, the indenture limits the right of the Trustee to
obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions;
however
, if the Trustee acquires any
conflicting interest (as defined in the Trust Indenture Act), it must eliminate such conflict within 90 days or resign.
Except during the
continuance of an Event of Default, the Trustee will perform only such duties as are specifically set forth in the indenture. During the continuance of an Event of Default actually known to a responsible officer of the Trustee, the Trustee will
exercise such of the rights and powers vested in it under the indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
Listing of the Exchange Notes
Although we expect to obtain and maintain a listing for the notes on the Official List of the Irish Stock Exchange and to admit the notes for
trading on the Global Exchange Market thereof, we cannot assure you that our application will be approved or that any series of notes will be listed and, if listed, that such notes will remain listed for the entire term of such notes. See Risk
FactorsRisks Relating to the Exchange Offer and the Exchange Notes and Plan of Distribution. If we are unable to obtain or maintain such a listing, we may obtain and maintain listing for the notes on another exchange in our
sole discretion.
Irish Listing Agent
Arthur Cox Listing Services Limited is acting solely in its capacity as listing agent for us in connection with the notes and is not itself
seeking admission of the notes to the Official List of the Irish Stock Exchange or to trading on its Global Exchange Market for the purpose of Directive 2003/71/EC, as amended, and any relevant implementing measures in the Republic of Ireland.
Enforcement of Court Decision
There is
no enforcement treaty between the Netherlands and the United States. Consequently, a judgment of any court in the United States cannot be enforced in the Netherlands. In order to obtain a judgment that can be
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enforced in the Netherlands against the Company, the dispute will have to be re-litigated before the competent Netherlands court, which will have discretion to attach such weight to the judgment
of any court in the United States, as it deems appropriate. The Netherlands courts can be expected to give conclusive effect to a final and enforceable judgment of a court in the United States without re-examination or re-litigation of the
substantive matters adjudicated upon if (i) the court involved accepted jurisdiction on the basis of an internationally recognized ground to accept jurisdiction, (ii) the proceedings before such court complied with principles of proper
procedure (
behoorlijke rechtspleging
), (iii) such judgment was not contrary to the public policy (
openbare orde
) of the Netherlands and (iv) such judgment was not incompatible with a judgment given between the same parties by
a Netherlands court or with a prior judgment given between the same parties by a foreign court in a dispute concerning the same subject matter and based on the same cause of action, provided such prior judgment is recognizable in the Netherlands.
Certain Definitions
Set forth below
is a summary of certain of the defined terms used in the indenture. Reference is made to the indenture for the full definition of all such terms as well as any other capitalized terms used herein for which no definition is provided. Unless the
context otherwise requires, an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles.
Affiliate
means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person;
provided
,
however
, that the Foundation is not an Affiliate of the Company or any Subsidiary of the Company. For the purposes of this definition,
control
when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the
terms
controlling
and
controlled
have meanings correlative to the foregoing. No Person (other than the Company or any Subsidiary of the Company) in whom a Receivables Entity makes an Investment in connection
with a Qualified Receivables Transaction will be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment.
Attributable Debt
in respect of a Sale Leaseback Transaction means, as at the time of determination, the present value
(discounted at the interest rate implicit in the lease, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale Leaseback Transaction (including any period for
which such lease has been extended);
provided
,
however
, that if such Sale Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition
of Capital Lease Obligation.
Attributable Receivables Indebtedness
at any time means the principal amount
of Indebtedness which (i) if a Qualified Receivables Transaction is structured as a secured lending agreement, would constitute the principal amount of such Indebtedness or (ii) if a Qualified Receivables Transaction is structured as a
purchase agreement, would be outstanding at such time under the Qualified Receivables Transaction if the same were structured as a secured lending agreement rather than a purchase agreement.
Below Investment Grade Rating Event
means, with respect to the notes of a series, the rating on such series of notes is
lowered in respect of a Change of Control and such series of notes is rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control
until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such series of notes is under publicly
announced consideration for possible downgrade by each of the Rating Agencies);
provided
that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in
respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in
61
rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part,
of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event). The
Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
Board of Directors
means the board of directors (
raad van bestuur
) of the Company or any duly authorized committee
thereof.
Business Day
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in the place of payment for a series of notes are authorized or obligated by law or executive order to close.
Capital Lease Obligations
means, with respect to any Person, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under
GAAP; and, for the purposes of the indenture, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
Capital Stock
of any Person means any and all shares, interests, participations, rights in or other equivalents (however
designated) of such Persons capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock, and any rights (other than debt securities convertible into, or
exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
Change of Control
means the occurrence of any of the following events:
(1) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than the Foundation is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company consolidates with or merges with or into any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into
or exchanged for cash, securities or other property, other than any such transaction where:
(A) the outstanding Voting
Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation, and
(B) the holders of
the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the Company or the surviving corporation immediately after such transaction and in substantially the
same proportion as before the transaction, or
(3) the Company is liquidated or dissolved or adopts a plan of liquidation
or dissolution other than in a transaction which complies with the provisions described under Consolidation, Merger and Sale of Assets;
62
provided
that any event described by clause (1) of this definition that lasts for fewer than 60 days
shall not constitute a Change of Control if prior to the expiration of such period, the Foundation exercises its right to acquire Capital Stock in the Company such that the event that would otherwise constitute a Change of Control has ceased to
exist.
Change of Control Repurchase Event
means, with respect to a series of notes, the occurrence of a Change of
Control together with a Below Investment Grade Rating Event with respect to such series of notes.
Commission
means the
U.S. Securities and Exchange Commission.
Commodity Price Protection Agreement
means any forward contract, commodity
swap, commodity option or other similar financial agreement or arrangement relating to, or the value of which is dependent upon, fluctuations in commodity prices.
Consolidated Net Tangible Assets
means, with respect to the Company, the total amount of assets (less applicable reserves
and other properly deductible items) after deducting (i) all current liabilities (excluding the amount of liabilities which are by their terms extendable or renewable at the option of the obligor to a date more than 12 months after the date as
of which the amount is being determined) and (ii) all goodwill, tradenames, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the most recent consolidated balance sheet of the
Company and its Subsidiaries.
Currency Agreement
means one or more of the following agreements which shall be entered
into by one or more financial institutions: foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values.
Default
means any event which is, or after notice or passage of time or both would be, an Event of Default.
Domestic Subsidiary
means any Subsidiary that is not a Foreign Subsidiary.
Event of Default
has the meaning set forth under Events of Default.
Exchange Act
means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations
promulgated by the Commission thereunder.
Fair Market Value
means, with respect to any asset or property, the sale
value that would be obtained in an arms-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy less any Taxes payable as a result of or
arising out of the disposition of such asset or property. Fair Market Value shall be determined in good faith by the Company.
Foreign Subsidiary
means a Subsidiary that is not organized, incorporated or existing under the laws of the United States
of America or any state or territory thereof or the District of Columbia or is a Subsidiary of such Foreign Subsidiary.
Foundation
means Stichting Preferred Shares Mylan, a foundation (
stichting
) established and existing under the laws
of the Netherlands.
GAAP
means generally accepted accounting principles in the United States of America as in effect
from time to time (except with respect to accounting for capital leases, as to which such principle in effect on the Issue Date shall apply), including, without limitation, those set forth in the Financial Accounting Standards Boards
Accounting Standards Codification or in such other statements by such other entity as approved by a significant segment of the accounting profession.
63
Governmental Authority
means the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Guarantee
means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(b) entered into for the purpose of assuring in any other manner the obligee against loss in respect thereof (in whole or in
part);
provided
,
however
, that the term
Guarantee
shall not include:
(1) endorsements for collection or deposit in the ordinary course of business; or
(2) a contractual commitment by one Person to invest in another Person.
The term
Guarantee
used as a verb has a corresponding meaning. The term Guarantor means any Subsidiary of the
Company that Guarantees the notes under the indenture.
Hedging Obligations
of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Protection Agreement or any other similar agreement or arrangement.
Incur
means issue, assume, Guarantee, incur or otherwise become liable for. The term
Incurrence
when
used as a noun has a correlative meaning.
Indebtedness
means, with respect to any Person on any date of determination
(without duplication):
(1) the principal in respect of (A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become
due and payable;
(2) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale Leaseback
Transactions entered into by such Person;
(3) all obligations of such Person issued or assumed as the deferred purchase
price of Property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding any accounts payable or other liability to trade creditors arising in the ordinary course of
business);
(4) all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers
acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the 30th day following payment on the letter of credit);
(5) to the extent not otherwise included in this definition, Hedging Obligations of such Person;
64
(6) all Attributable Receivables Indebtedness;
(7) all obligations of the type referred to in clauses (1) through (6) above of other Persons and all dividends of
other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; and
(8) all obligations of the type referred to in clauses (1) through (7) above of other Persons secured by any Lien on
any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the Fair Market Value of such property or assets and the amount of the obligation so
secured.
Notwithstanding the foregoing, in connection with the purchase by the Company or any Subsidiary of the Company of any business,
the term
Indebtedness
will exclude indemnification, purchase price adjustment, earn-outs, holdback, milestones and contingency payment obligations to which the seller may become entitled to the extent such payment is determined by
a final closing balance sheet or such payment depends on the performance of such business after the closing;
provided
,
however
, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such
payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter.
The amount of Indebtedness of any Person
at any date shall be the outstanding balance at such date of all obligations as described above;
provided
,
however
, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted
value thereof at such time.
Indenture Obligations
means the obligations of the Company and any other obligor under the
indenture or under the notes to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with the indenture and the notes and the performance of all other obligations to
the Trustee and the holders under the indenture and the notes, according to the respective terms thereof.
Interest Rate
Agreement
means one or more of the following agreements which shall be entered into by one or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and
similar agreements) and/or other types of interest rate hedging agreements from time to time.
Investment
means, with
respect to any Person, directly or indirectly, (i) any advance, loan (including guarantees), or other extension of credit or capital contribution to (by means of any transfer of cash or other property to others), (ii) any payment for
property or services for the account or use of others, (iii) any purchase, acquisition or ownership by such Person of any Capital Stock, bonds, notes, debentures or other securities issued by any other Person, or (iv) any other item to the
extent required to be reflected as an investment on a consolidated balance sheet of such Person prepared in accordance with GAAP.
Investment Grade Rating
means (i) with respect to Moodys, a rating equal to or higher than Baa3 (or the
equivalent), and (ii) with respect to S&P, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the notes for reasons outside of the Companys control, the equivalent
investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
Issue
Date
means December 9, 2015, the date on which the Restricted Notes were initially issued.
Lien
means any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
Moodys
means Moodys Investors Service, Inc., and any successor thereto.
65
Mylan Inc. Debt
means any Indebtedness outstanding under the following:
(1) Indenture dated as of December 21, 2012, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New
York Mellon, as trustee;
(2) First supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer,
the Company, as guarantor, and The Bank of New York Mellon, as trustee, to the indenture dated as of December 21, 2012;
(3) Second supplemental indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The
Bank of New York Mellon, as trustee, to the indenture dated as of December 21, 2012;
(4) Indenture dated as of
June 25, 2013, among Mylan Inc., the guarantors thereto and The Bank of New York Mellon, as trustee;
(5) First
supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee, to the indenture dated as of June 25, 2013;
(6) Second supplemental indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The
Bank of New York Mellon, as trustee, to the indenture dated as of June 25, 2013;
(7) Indenture dated as of
November 29, 2013, by and between Mylan Inc. and The Bank of New York Mellon, as trustee;
(8) First supplemental
indenture dated as of November 29, 2013, by and between Mylan Inc. and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013;
(9) Second supplemental indenture dated as of February 27, 2015, among Mylan Inc., as issuer, the Company, as guarantor,
and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013;
(10) Third supplemental
indenture dated as of March 12, 2015, among Mylan Inc., as issuer, the Company, as parent, and The Bank of New York Mellon, as trustee, to the indenture dated as of November 29, 2013;
(11) Revolving Credit Agreement; and
(12) Term Credit Agreements.
Obligations
means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.
Officers Certificate
means a certificate signed by the Chairman of the Board of Directors, the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President, Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
Opinion of Counsel
means a written opinion from legal counsel, who is acceptable to the Trustee, delivered to the Trustee.
The counsel may be an employee of or counsel to the Company or the Trustee.
Permitted Liens
means, with respect to any
Person:
(1) pledges or deposits by such Person under workers compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or
66
statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, performance bonds or obligations of a
like nature or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers, warehousemens and mechanics Liens, in each case for sums not yet
due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and Liens
arising solely by virtue of any statutory or common law provision relating to bankers Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
provided
,
however
, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal
Reserve Board and (B) such deposit account is not intended by the Company or any Subsidiary of the Company to provide collateral to the depository institution;
(3) Liens for taxes, assessments or other governmental charges or claims, in each case not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate proceedings;
(4) Liens in favor of issuers of
performance and surety bonds or bid bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of such properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness Incurred after the Issue Date in respect of Purchase Money Indebtedness and refinancing
Indebtedness in respect thereof;
(7) Liens existing on the Issue Date;
(8) Liens on property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such
Person;
provided
,
however
, that the Liens may not extend to any other property owned by such Person or any of its Subsidiaries (other than assets and property affixed or appurtenant thereto);
(9) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by
means of a merger or consolidation with or into such Person or a Subsidiary of such Person;
provided
,
however
, that the Liens may not extend to any other property owned by such Person or any of its Subsidiaries (other than assets and
property affixed or appurtenant thereto);
(10) Liens securing Indebtedness or other obligations of a Subsidiary of such
Person owing to such Person or a Wholly Owned Subsidiary of such Person;
(11) Liens securing Hedging Obligations so long
as such Hedging Obligations are not entered into for speculative purposes, it being understood that any Hedging Obligations entered into in connection with the issuance of Companys outstanding or future Indebtedness shall not be considered
speculative;
(12) any Lien on accounts receivable and related assets of the types specified in the definition of
Qualified Receivables Transaction incurred in connection with a Qualified Receivables Transaction;
(13) (a)
Liens in favor of the Company or any Guarantor and (b) Liens on the property of any Subsidiary of the Company in favor of any other Subsidiary of the Company;
(14) leases, subleases, licenses or sublicenses granted to third parties entered into in the ordinary course of business which
do not materially interfere with the conduct of the business of the Company and the Subsidiaries and which do not secure any Indebtedness;
67
(15) Liens securing judgments, decrees, orders or awards for the payment of money
not constituting an Event of Default in respect of which the Company shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or in respect of which the period within
which such appeal or proceedings may be initiated shall not have expired;
(16) With respect to the notes of any series,
liens created for the benefit of (or to secure) the notes of such series (or the Guarantees);
(17) Liens on specific items
of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(18) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale
of goods entered into by the Company or any Subsidiary of the Company in the ordinary course of business;
(19) Liens in
favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(20) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course
of collection and (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, including Liens encumbering reasonable customary initial deposits and margin deposits;
(21) Liens, pledges or deposits made in the ordinary course of business to secure liability to insurance carriers;
(22) grants of software and other technology licenses in the ordinary course of business;
(23) Liens on equipment of the Company or any Subsidiary of the Company granted in the ordinary course of business to the
Companys or such Subsidiarys supplier at which such equipment is located;
(24) Liens arising from Uniform
Commercial Code financing statement filings regarding operating leases or consignments entered into by the Company and its Subsidiaries in the ordinary course of business;
(25) Liens incurred to secure cash management services or to implement cash pooling or sweep arrangements to permit
satisfaction of overdraft or similar obligations in the ordinary course of business;
(26) Liens arising by virtue of any
statutory or common law provisions relating to bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution or as to purchase orders and other
agreements entered into with customers in the ordinary course of business;
(27) any encumbrance or restriction (including
put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(28) Liens on securities that are the subject of repurchase agreements;
(29) Liens securing insurance premiums financing arrangements;
provided
that such Liens are limited to the applicable
unearned insurance premiums;
(30) Liens arising solely from precautionary Uniform Commercial Code financing statements or
similar filings;
(31) ground leases in respect of real property on which facilities owned or leased by the Company or any
of its Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Company or any Subsidiary of the Company;
(32) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any
Lien referred to in the foregoing clauses (7), (8), (9), (10), (11), (12) or (14);
provided
,
however
, that:
(A) such new Lien shall be limited to all or part of the same property (plus improvements on such property) and assets that
secured or, under the written agreements pursuant to which the original Lien
68
arose, could secure the original Lien (
plus
improvements and accessions to such property or proceeds or distributions thereof); and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the
outstanding principal amount or, if greater, committed amount of the Indebtedness described under the foregoing clauses (7), (8), (9), (10), (11), (12) or (14) at the time the original Lien became a Permitted Lien and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
(33) Liens incurred in the ordinary course of business by American Triumvirate Insurance Company, a Vermont corporation, or any
successor thereto, so long as such Subsidiary is maintained as a special purpose self-insurance Subsidiary of the Company;
(34) Liens on equity interests of any Person formed for the purposes of engaging in activities in the renewable energy sector
(including refined coal) that qualify for federal tax benefits allocable to the Company and its Subsidiaries in which the Company or any Subsidiary of the Company has made an investment and Liens on the rights of the Company and its Subsidiaries
under any agreement relating to any such investment;
(35) any Lien arising under Article 24 or 26 of the general terms and
conditions (
Algemene Bank Voorwaarden
) of any member of the Dutch Bankers Association (
Nederlandse Vereniging van Banken
) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and
conditions;
(36) any netting or set-off arrangement entered into by the Company or any Subsidiary of the Company in the
ordinary course of its banking arrangements for the purpose of netting debt and credit balances;
(37) any Lien, including
any netting or set-off, arising by operation of law as a result of the existence of a fiscal unity (
fiscale eenheid
) for Dutch tax purposes of which any Subsidiary of the Company is or has been a member;
(38) Liens on cash and cash equivalents deposited as cash collateral on letters of credit as contemplated by the Revolving
Credit Agreement;
(39) Liens on earnest money or similar deposits or other cash advances in connection with
acquisitions or consisting of an agreement to dispose of any property in a disposition, including customary rights and restrictions contained in such agreements; and
(40) other Liens securing Indebtedness, in an aggregate principal amount for the Company and its Subsidiaries together with the
amount of Attributable Debt incurred in connection with Sale Leaseback Transactions, not exceeding at the time such Lien is created or assumed the greater of $500 million or 15% of Consolidated Net Tangible Assets, at any one time outstanding.
For purposes of determining compliance with this definition, (A) Permitted Liens need not be incurred solely by reference to one category
of Permitted Liens described above but are permitted to be incurred in part under any combination thereof and (B) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described
above, the Company may, in its sole discretion, classify or reclassify such item of Permitted Liens (or any portion thereof) in any manner that complies with this definition and the Company may divide and classify a Lien in more than one of the
types of Permitted Liens in one of the above clauses.
Person
means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Preferred Stock
, as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions, or as to the distribution
69
of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
Property
means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, Capital Stock.
Purchase Money Indebtedness
means Indebtedness
Incurred to finance the acquisition, development, construction or lease by the Company or a Domestic Subsidiary of the Company of Property, including additions and improvements thereto, where the maturity of such Indebtedness does not exceed the
anticipated useful life of the Property being financed;
provided
,
however
, that such Indebtedness is Incurred within 270 days after the completion of the acquisition, development, construction or lease of such Property by the Company
or such Domestic Subsidiary.
Qualified Receivables Transaction
means any transaction or series of transactions that
may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the Company or any of its Subsidiaries) or
(2) any other Person (in the case of a transfer by a Receivables Entity),
or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and
any assets related thereto, including all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable;
provided
,
however
, that the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as determined in good faith by the chief financial officer of the Company).
Rating Agencies
means:
(1) S&P;
(2) Moodys; or
(3) if S&P or Moodys or both shall not make a rating of the notes publicly available, a nationally recognized
statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P or Moodys or both, as the case may be.
Receivables Entity
means (a) a Wholly Owned Subsidiary of the Company that is designated by the Board of Directors (as
provided below) as a Receivables Entity or (b) another Person engaging in a Qualified Receivables Transaction with the Company, which Person engages in the business of the financing of accounts receivable, and in either of clause (a) or
(b):
(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity:
(A) is Guaranteed by the Company or any Subsidiary of the Company (excluding Guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(B) is recourse to or
obligates the Company or any Subsidiary of the Company in any way (other than pursuant to Standard Securitization Undertakings), or
(C) subjects any property or asset of the Company or any Subsidiary of the Company, directly or indirectly, contingently or
otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings);
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(2) the entity is not an Affiliate of the Company or is an entity with which
neither the Company nor any Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms that the Company reasonably believes to be no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of the Company; and
(3) is an entity to which
neither the Company nor any Subsidiary of the Company has any obligation to maintain or preserve such entitys financial condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution
of the Board of Directors giving effect to such designation and an Officers Certificate certifying that such designation complied with the foregoing conditions.
Refinance
means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, purchase, redeem,
defease or retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness.
Refinanced
and
Refinancing
have correlative meanings.
Revolving Credit Agreement
means the Revolving Credit Agreement dated as of December 19, 2014, among Mylan Inc., as
borrower, the Company, as guarantor, the lenders party thereto, and Bank of America, N.A., as administrative agent, as amended by Amendment No. 1 to Revolving Credit Agreement dated as of May 1, 2015, and as further amended by
Amendment No. 2 to Revolving Credit Agreement dated as of October 28, 2015, in whole or in part, in one or more instances, as such agreement may be amended, renewed, extended, substituted, refinanced, restructured, replaced (whether or not
upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase agreements or sales of debt securities to
institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing).
S&P
means Standard & Poors Ratings Group, and any successor
thereto.
Sale Leaseback Transaction
means the leasing by the Company or any Domestic Subsidiary of the Company of any
property, whether owned on the Issue Date or acquired after the Issue Date (except for temporary leases for a term, including any renewal term, of up to three years and except for leases between the Company and any Domestic Subsidiary of the Company
or between Domestic Subsidiaries of the Company), which property has been or is to be sold or transferred by the Company or such Domestic Subsidiary to any party with the intention of taking back a lease of such property.
Securities Act
means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations
promulgated by the Commission thereunder.
Significant Subsidiary
means any Subsidiary of the Company that would be a
significant subsidiary of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission, as such Regulation is in effect on the Issue Date.
Standard Securitization Undertakings
means representations, warranties, covenants and indemnities entered into by the
Company or any Subsidiary of the Company that, taken as a whole, are customary in an accounts receivable transaction.
Stated
Maturity
means, when used with respect to any Indebtedness or any installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as
the case may be, is due and payable.
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Subsidiary
means, with respect to any specified Person:
(1) any corporation, limited liability company, association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof);
provided
that the Foundation is not a Subsidiary of the Company.
Term Credit Agreements
means (i) the Term Credit Agreement dated December 19, 2014, among Mylan Inc., as
borrower, the Company, as guarantor, the lenders party thereto and Bank of America, as administrative agent, as amended by Amendment No. 1 to Term Credit Agreement dated May 1, 2015 and as further amended by Amendment No. 2 to Term
Credit Agreement dated October 28, 2015 and (ii) the Term Credit Agreement dated July 15, 2015, among Mylan Inc., as borrower, the Company, as guarantor, the lenders party thereto, and PNC Bank, National Association, as administrative
agent, as amended by Amendment No. 1 to Term Credit Agreement dated October 28, 2015 and in each case, in whole or in part, in one or more instances, as such agreements may be amended, renewed, extended, substituted, refinanced,
restructured, replaced (whether or not upon termination, and whether with the original lenders or otherwise), supplemented or otherwise modified from time to time (including, in each case, by means of one or more credit agreements, note purchase
agreements or sales of debt securities to institutional investors whether with the original agents and lenders or otherwise and including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing).
Triggering Indebtedness
means
(i) Indebtedness outstanding under the Revolving Credit Agreement, (ii) Indebtedness outstanding under the Term Credit Agreements or (iii) any other Indebtedness of the Company or any Subsidiary of the Company represented by bonds,
debentures, notes or other securities, in each case, that has an aggregate principal amount or committed amount of at least $350.0 million;
provided
that, in the case of clauses (i) through (iii) above, in no event shall Triggering
Indebtedness include Indebtedness Incurred by a Foreign Subsidiary of the Company that does not directly or indirectly Guarantee, become an obligor under or otherwise provide direct credit support for any Indebtedness of the Company or any
Subsidiary of the Company.
Trust Indenture Act
means the Trust Indenture Act of 1939, as amended.
U.S. Government Obligations
means securities that are (i) direct obligations of the United States for the payment of
which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or an instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, that, in either case, are not callable or redeemable at the action of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt;
provided
that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depositary receipt.
Voting Stock
of a Person means
Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the
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board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
Wholly Owned Subsidiary
means a Subsidiary of the Company of which the Company owns
all of the Capital Stock, directly or indirectly, other than directors qualifying shares, of such Subsidiary.
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BOOK-ENTRY, DELIVERY AND FORM
The Global Notes
Initially, the Exchange
Notes will be represented by one or more registered notes in global form, without interest coupons (collectively, the Global Notes). The Global Notes will be deposited on the issue date with, or on behalf of, DTC and registered in the
name of Cede & Co., as nominee of DTC, or will remain with the Trustee as custodian for DTC.
Except as set forth below, the Global
Notes may be transferred, in whole and not in part, solely to another nominee of DTC or to a successor of DTC or such successors nominee. Beneficial interests in the Global Notes may not be exchanged for notes in physical, certificated form
(Certificated Notes) except in the limited circumstances described below.
All interests in the Global Notes, including those
held through Euroclear Bank S.A., as operator of the Euroclear System (Euroclear) or Clearstream Banking, S.A. (Clearstream), may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or
Clearstream may also be subject to the procedures and requirements of such settlement systems.
Book-Entry Procedures for the Global Notes
All interests in the Global Notes will be subject to the operations and procedures of DTC, Euroclear and Clearstream. We provide the following
summaries of those operations and procedures solely for the convenience of investors. The operations and procedures of each settlement system are controlled by that settlement system and may be changed at any time. Neither we nor the initial
purchasers of the Restricted Notes are responsible for those operations or procedures.
DTC has advised us that it is:
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a limited purpose trust company organized under the laws of the State of New York;
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a banking organization within the meaning of the New York State Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New York Uniform Commercial Code; and
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a clearing agency pursuant to Section 17A of the Exchange Act.
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DTC was
created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entry changes to the accounts of its participants. DTCs participants
include securities brokers and dealers, including the initial purchasers of the Restricted Notes, banks and trust companies, clearing corporations and other organizations. Indirect access to DTCs system is also available to others such as
banks, brokers, dealers and trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities
held by or on behalf of DTC only through DTC participants or indirect participants in DTC.
So long as DTCs nominee is the
registered owner of a Global Note, that nominee will be considered the sole owner or holder of the notes represented by that Global Note for all purposes under the Indenture. Except as provided below, owners of beneficial interests in a Global Note:
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will not be entitled to have notes represented by the Global Note registered in their names;
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will not receive or be entitled to receive physical delivery of the Certificated Notes; and
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will not be considered the owners or holders of the notes under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee under the Indenture.
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As a result, each investor who owns a beneficial interest in a Global Note must rely on the procedures of DTC to exercise
any rights of a holder of notes under the Indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).
Payments of principal, premium (if any) and interest with respect to the notes represented by a Global Note will be made by the trustee to
DTCs nominee as the registered holder of the Global Note. Neither we nor the trustee will have any responsibility or liability for the payment of amounts to owners of beneficial interests in a Global Note, for any aspect of the records
relating to or payments made on account of those interests by DTC, or for maintaining, supervising or reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of beneficial interests in a Global Note will be governed by standing
instructions and customary industry practice and will be the responsibility of those participants or indirect participants and DTC.
Transfers between participants in DTC will be effected under DTCs procedures and will be settled in same-day funds. If the laws of a
jurisdiction require that certain persons take physical delivery of securities in definitive form, the ability to transfer beneficial interests in a Global Note to such persons may be limited. Because DTC can only act on behalf of participants, who
in turn act on behalf of indirect participants and certain banks, the ability of a person holding a beneficial interest in a Global Note to pledge its interest to a person or entity that does not participate in the DTC system, or otherwise take
actions in respect of its interest, may be affected by the lack of a physical security.
Transfers between participants in Euroclear or
Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems.
Cross-market transfers
between DTC participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an
interest in a Global Note held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of
that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the
relevant Global Notes in DTC, and making or receiving payment under normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are
acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant
that purchases an interest in a Global Note from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an
interest in a Global Note to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC
settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the Global
Notes among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the Trustee will have any responsibility
for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
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Certificated Notes
Notes in physical, certificated and registered form will be issued and delivered to each person that DTC identifies as a beneficial owner of
the related notes only if:
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DTC notifies us at any time that it is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days;
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DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days;
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we, at our option, and subject to DTCs procedures, notify the Trustee under the Indenture in writing that we elect to cause the issuance of Certificated Notes; or
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certain other events provided in the Indenture should occur.
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