Form 8-K - Current report

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 8, 2023

Intercept Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

Delaware	001-35668	22-3868459
(State or other Jurisdiction of	(Commission File No.)	(I.R.S. Employer Identification
Incorporation)		No.)

305 Madison Avenue
Morristown, NJ 07960

(Address of principal executive offices, including Zip Code)

(646) 747-1000

(Registrant’s telephone number, including area code)

Not applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.001 per share	ICPT	Nasdaq Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

INTRODUCTORY NOTE

As previously reported in the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 26, 2023, Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated September 26, 2023, with Alfasigma S.p.A., an Italian società per azioni (joint stock company) (“Alfasigma”) and Interstellar Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of Alfasigma (“Purchaser”). All capitalized terms used herein and not otherwise defined have the meanings given to such terms in the Merger Agreement.

Pursuant to the Merger Agreement, upon the terms and subject to the conditions thereof, Purchaser commenced a tender offer (the “Offer”) on October 11, 2023, to acquire all of the outstanding shares of the Company’s common stock (the “Shares”) at an offer price of $19.00 per Share, net to the seller in cash, without interest (the “Offer Price”), subject to any applicable withholding taxes.

The Offer and related withdrawal rights expired as scheduled at one minute after 11:59 p.m., Eastern Time on November 7, 2023 (such date, the “Expiration Date”), and the Offer was not extended. Computershare Trust Company N.A., in its capacity as the depositary for the Offer, has advised that, as of the expiration of the Offer, 31,158,412 Shares (excluding Shares with respect to which notices of guaranteed delivery were delivered) were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 74.5% of the total number of Shares outstanding at the time of the expiration of the Offer. The number of Shares tendered satisfied the Minimum Condition. As the Minimum Condition and each of the other conditions of the Offer have been satisfied, Purchaser has accepted for payment all Shares that were validly tendered and not validly withdrawn pursuant to the Offer. In addition, Computershare Trust Company N.A., in its capacity as depositary for the Offer, has advised Purchaser that notices of guaranteed delivery have been delivered with respect to 2,617,509 additional Shares, representing approximately 6.3% of the total number of Shares outstanding at the time of the expiration of the Offer.

Following consummation of the Offer, the remaining conditions to the merger of Purchaser with and into the Company (the “Merger”, and together with the Offer, the “Transaction”) set forth in the Merger Agreement were satisfied, and on November 8, 2023, Alfasigma completed its acquisition of the Company by consummating the Merger without a meeting of stockholders of the Company in accordance with Section 251(h) of the General Corporation Law of the State of Delaware, with the Company continuing as the surviving corporation (the “Surviving Corporation”). At the effective time of the Merger (the “Effective Time”), Shares not purchased pursuant to the Offer (other than certain excluded Shares as described in the Merger Agreement) were converted into the right to receive the Offer Price. As a result of the Merger, the Company became a wholly owned subsidiary of Alfasigma.

Pursuant to the Merger Agreement, at the Effective Time:

Each compensatory option to purchase Shares (each, a “Company Option”) that was outstanding and unexercised as of immediately prior to the Effective Time, whether or not vested, and which had a per Share exercise price that is less than $19.00 (each, an “In the Money Option”), was cancelled and converted into the right to receive a cash payment equal to (A) the excess of (x) $19.00 over (y) the exercise price payable per Share of such In the Money Option, multiplied by (B) the total number of Shares subject to such In the Money Option immediately prior to the Effective Time, less applicable taxes required to be withheld with respect to such payment.

Each Company Option other than an In the Money Option that was outstanding and unexercised as of immediately prior to the Effective Time, whether or not vested, was cancelled with no consideration payable in respect thereof.

Each restricted stock unit with respect to Shares subject to performance vesting conditions granted pursuant to the Company Equity Plans (each, a “Company PSU”) that was outstanding as of immediately prior to the Effective Time was cancelled and the holder thereof will be entitled to receive a cash payment (without interest) equal to the product of (x) $19.00 and (y) the number of Shares subject to such Company PSU as of immediately prior to the Effective Time based upon the actual level of performance determined in accordance with the terms of the applicable Company PSU award agreement, less applicable taxes required to be withheld with respect to such payment.

Each restricted stock unit with respect to Shares granted pursuant to the Company Equity Plans other than Company PSUs (each, a “Company RSU”) that was outstanding as of immediately prior to the Effective Time was converted into the contingent right to receive a cash payment (without interest) equal to the product of (x) $19.00 and (y) the number of Shares subject to such Company RSU as of immediately prior to the Effective Time, less applicable taxes required to be withheld with respect to such payment (the “Company RSU Consideration”). Subject to the applicable holder’s continued service with Alfasigma and its affiliates (which includes Intercept following the Effective Time), the Company RSU Consideration will vest and become payable in accordance with the vesting schedule (including any vesting acceleration provisions) that applied to the corresponding portion of the applicable Company RSUs immediately prior to the Effective Time. The Company RSU Consideration will otherwise remain subject to the same terms and conditions that were applicable to the underlying Company RSUs immediately prior to the Effective Time, except for terms rendered inoperative by reason of the Offer or the Merger.

The foregoing description of the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on September 26, 2023, and is incorporated herein by reference.

Item 1.01 - Entry into a Material Definitive Agreement.

On November 8, 2023, the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), entered into:

the third supplemental indenture, dated as of November 8, 2023 (the “2026 Convertible Notes Third Supplemental Indenture”), to the base indenture, dated as of July 6, 2016, as supplemented by the second supplemental indenture, dated as of May 14, 2019, each by and between the Company and the Trustee (the base indenture as so supplemented, the “2026 Convertible Notes Indenture”), relating to the Company’s 2.00% Convertible Senior Notes due 2026 (the “2026 Convertible Notes”); and

the second supplemental indenture, dated as of November 8, 2023 (the “2026 Convertible Secured Notes Second Supplemental Indenture”), to the base indenture, dated as of August 17, 2021, as supplemented by the first supplemental indenture, dated as of August 17, 2021, each by and between the Company and the Trustee (the base indenture as so supplemented, the “2026 Convertible Secured Notes Indenture” and, together with the 2026 Convertible Notes Indenture, the “Indentures,” and each, an “Indenture”), relating to the Company’s 3.50% Convertible Senior Secured Notes due 2026 (the “2026 Convertible Secured Notes” and, together with the 2026 Convertible Notes, the “Convertible Notes”).

As a result of the Merger, and pursuant to the 2026 Convertible Notes Third Supplemental Indenture and the 2026 Convertible Secured Notes Second Supplemental Indenture, from and after the Effective Time, the Convertible Notes are no longer convertible into shares of the Company’s common stock. Rather, a holder’s right to convert each $1,000 principal amount of the 2026 Convertible Notes and the 2026 Convertible Secured Notes, as applicable, into shares of the Company’s common stock has been changed to the right to convert such principal amount solely into a number of units of Reference Property (as defined in the applicable Indenture) in an aggregate amount equal to the conversion rate of the 2026 Convertible Notes or 2026 Convertible Secured Notes, as applicable, in effect on the applicable conversion date (subject to any adjustments pursuant to the terms of the applicable Indenture), with each unit of Reference Property consisting of $19.00 in cash. The foregoing descriptions of the Indentures and the transactions contemplated thereby are subject to and qualified in their entirety by reference to the full text of the Indentures as incorporated by reference in Exhibits 4.2, 4.8, 4.10 and 4.11 of Intercept’s most recent Annual Report on Form 10-K. Copies of the 2026 Convertible Notes Third Supplemental Indenture and the 2026 Convertible Secured Notes Second Supplemental Indenture are filed as Exhibits 4.1 and 4.2 to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The disclosures under the Introductory Note and Item 3.01 are incorporated herein by reference.

Item 2.04 Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

The consummation of the Transaction constitutes a Share Exchange Event, a Fundamental Change and a Make-Whole Fundamental Change (each as defined in the Indentures) under the Indentures. The effective date of each of the Fundamental Change and the Make-Whole Fundamental Change is November 8, 2023, the date of the consummation of the Transaction. For the avoidance of doubt, the notices filed as Exhibits 99.1 and 99.2 to this Current Report on Form 8-K do not constitute the Fundamental Change Issuer Notice (as defined in the Indentures), which the Company will subsequently issue, pursuant to which each holder will have the right to require the Company to repurchase its Convertible Notes. As a result of the consummation of the Transaction, each holder also has the right to surrender its Convertible Notes for conversion. In addition, as a result of the Make-Whole Fundamental Change, holders of the 2026 Convertible Secured Notes who convert their Convertible Notes at any time beginning on November 8, 2023, the effective date of the Make-Whole Fundamental Change, and ending at 5:00 p.m., New York City time, on the business day immediately preceding the Fundamental Change Repurchase Date (as defined in the Indentures, which shall be specified in the Fundamental Change Issuer Notice that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Issuer Notice) (such period, the “Make-Whole Adjustment Period”), shall be entitled to convert their Convertible Notes at an increased conversion rate as described below.

Pursuant to the Indentures, the Company will issue the Fundamental Change Issuer Notice by November 28, 2023, which is the 20^th calendar day after the effective date of the Transaction, pursuant to which, each holder of the Convertible Notes will have the right, at the holder’s option, to require the Company to purchase for cash all of such holder’s Convertible Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the Fundamental Change Repurchase Date, in accordance with and subject to the satisfaction by the holder of the requirements set forth in the Indentures, at a repurchase price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount of such Convertible Notes, plus any accrued and unpaid interest thereon, to, but excluding, the Fundamental Change Repurchase Date.

In accordance with the Indentures and Section 2.01 of the 2026 Convertible Notes Third Supplemental Indenture and the 2026 Convertible Secured Notes Second Supplemental Indenture, holders who surrender their Convertible Notes for conversion from and after the Effective Time at any time when the Convertible Notes are convertible will receive cash in an amount equal to the Conversion Rate in effect on the Conversion Date (each as defined in the Indentures), multiplied by the Offer Price of $19.00 (less any applicable withholding taxes), and will not receive any Shares. Because the consummation of the Transaction constitutes a Make-Whole Fundamental Change, the Conversion Rate for the 2026 Convertible Secured Notes surrendered for conversion at any time during the Make-Whole Adjustment Period will be increased to the Conversion Rate equal to $1096.7161 per $1,000 principal amount of the 2026 Convertible Secured Notes. Any holder converting its Convertible Notes after the Make-Whole Adjustment Period will not be entitled to the increased Conversion Rate. The Conversion Rate for the 2026 Convertible Notes has not been increased.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

The disclosures under the Introductory Note are incorporated herein by reference.

On November 8, 2023, the Company (i) notified the Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the Merger and (ii) requested that Nasdaq (A) suspend trading of the Shares effective before the opening of trading on November 8, 2023, and (B) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As a result, the Shares will no longer be listed on Nasdaq. The Company intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the suspension of the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.

Item 3.03 Material Modification to Rights of Security Holders.

The disclosures under the Introductory Note, Item 3.01, Item 5.01 and Item 5.03 are incorporated herein by reference.

Item 5.01 Changes in Control of Registrant.

The disclosures under the Introductory Note, Item 3.01, Item 5.02 and Item 5.03 are incorporated herein by reference.

As a result of the consummation of the Offer and the Merger, there was a change in control of the Company, and Alfasigma, as the direct parent of Purchaser, acquired control of the Company. To the knowledge of the Company, there are no arrangements which may at a subsequent date result in a further change in control of the Company.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

As of the Effective Time, Jerome Durso, Paolo Fundarò, Mark Pruzanski, M.D., Srinivas Akkaraju, M.D., Ph.D., Luca Benatti, Ph.D., Daniel Bradbury, Keith Gottesdiener, M.D., Nancy Miller-Rich, Dagmar Rosa-Bjorkeson, Gino Santini and Glenn Sblendorio each resigned and ceased to be directors of the Company and members of any committee of the Company’s board of directors. These resignations were not a result of any disagreement between the Company and the directors on any matter relating to the Company’s operations, policies or practices.

As of the Effective Time, the directors of Purchaser immediately prior to the Effective Time became the directors of the Surviving Corporation. The directors of Purchaser immediately prior to the Effective Time were Francesco Balestrieri, Stefano Pasi and Michele Cera.

As of the Effective Time, all executive officers of the Company immediately prior to the Effective Time remained in their respective positions as the executive officers of the Surviving Corporation, except that Mr. Durso was removed as the President and Mr. Balestrieri was appointed as the President of the Surviving Corporation. Mr. Durso remains the Chief Executive Officer of the Surviving Corporation.

Information regarding the new directors and executive officers has been previously disclosed in Annex A of the Offer to Purchase filed as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO filed by Alfasigma and Purchaser with the SEC on October 11, 2023, as subsequently amended, which is incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change of Fiscal Year.

Pursuant to the terms of the Merger Agreement, as of the Effective Time, the Company’s certificate of incorporation, as in effect immediately prior to the Effective Time, was amended and restated in its entirety (the “Amended and Restated Certificate of Incorporation”). In addition, pursuant to the terms of the Merger Agreement, at the Effective Time, the Company’s bylaws, as in effect immediately prior to the Effective Time, were amended and restated in their entirety (the “Second Amended and Restated Bylaws”).

Copies of the Amended and Restated Certificate of Incorporation and the Second Amended and Restated Bylaws are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K, and are incorporated herein by reference.

Item 8.01 Other Events.

On November 8, 2023, the Company delivered to all holders of its Convertible Notes, with respect to each series, notice of the execution of the Supplemental Indentures, notice of the occurrence of the effective date of the Make-Whole Fundamental Change, and notice of the conversion right at the option of the holders arising as a result thereof (such notices, the “Convertible Note Notices”).

The description contained under the Introductory Note above and in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in its entirety into this Item 8.01. Copies of the Convertible Note Notices are filed as Exhibits 99.1 and 99.2, respectively, hereto and are incorporated herein by reference.

Item 9.01    Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number		Description

2.1		Agreement and Plan of Merger, dated September 26, 2023, among Intercept Pharmaceuticals, Inc., Alfasigma S.p.A. and Interstellar Acquisition Inc. (incorporated by reference to Exhibit 2.1 to The Company’s Current Report on Form 8-K filed with the SEC on September 26, 2023).*
3.1		Amended and Restated Certificate of Incorporation of Intercept Pharmaceuticals, Inc., dated November 8, 2023.
3.2		Second Amended and Restated Bylaws of Intercept Pharmaceuticals, Inc., dated November 8, 2023.
4.1		Third Supplemental Indenture, dated as of November 8, 2023, between Intercept Pharmaceuticals, Inc., and U.S. Bank Trust Company, National Association
4.2		Second Supplemental Indenture, dated as of November 8, 2023, between Intercept Pharmaceuticals, Inc. and U.S. Bank Trust Company, National Association
99.1		Notice of Supplemental Indenture and Make-Whole Fundamental Change to Holders of 2.00% Convertible Senior Notes Due 2026, dated November 8, 2023
99.2		Notice of Supplemental Indenture and Make-Whole Fundamental Change to Holders of 3.50% Convertible Senior Secured Notes Due 2026, dated November 8, 2023
104		Cover Page Interactive Data File (embedded as Inline XBRL document)

* Schedules to the Agreement and Plan of Merger have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies of any such schedules to the U.S. Securities and Exchange Commission upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Intercept Pharmaceuticals, Inc.


By:	/s/ Jerome Durso
	Name:	Jerome Durso
	Title:	Chief Executive Officer

Dated: November 8, 2023

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

INTERCEPT PHARMACEUTICALS, INC.

FIRST: The name of the corporation is Intercept Pharmaceuticals, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, County of New Castle, Wilmington, Delaware 19808. The name of the Corporation’s registered agent at such address is Corporation Service Company.

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as amended (the “DGCL”).

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is one thousand (1,000), consisting of 1,000 shares of Common Stock, having a par value of $0.01 per share.

FIFTH: In furtherance of and not in limitation of powers conferred by statute, it is further provided:

The business and affairs of the Corporation shall be managed by or under the direction of the board of directors of the Corporation.

Election of directors need not be by written ballot.

The board of directors of the Corporation is expressly authorized to adopt, amend, alter or repeal the bylaws of the Corporation.

SIXTH: Except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability; provided that this Article SIXTH shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived any improper personal benefit. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability or any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended.

SEVENTH: To the fullest extent permitted by applicable law, as amended from time to time, the Corporation is authorized to provide indemnification for (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which applicable law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons (including Section 6.4(a) of that certain Agreement and Plan of Merger, dated September 26, 2023, by and among Intercept Pharmaceuticals, Inc., Alfasigma S.p.A. and Interstellar Acquisition Inc.), vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. Any repeal or modification of this provision shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

EIGHTH: Subject to such limitations as may be from time to time imposed by other provisions of this Amended and Restated Certificate of Incorporation, by the bylaws of the Corporation, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Amended and Restated Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.

Exhibit 3.2

Second Amended and Restated Bylaws

1. MEETINGS OF STOCKHOLDERS.

1.1 Annual Meeting. The annual meeting of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors (the “Board”) and stated in the notice of the meeting or waiver of notice thereof; except that no annual meeting need be held if all actions, including the election of directors, required by the Delaware General Corporation Law (the “DGCL”) to be taken at an annual meeting of stockholders are taken by written consent in lieu of a meeting pursuant to Section 1.8 of these By-laws (these “By-laws”).

1.2 Special Meetings. Special meetings of the stockholders may be called by resolution of the Board or by the president and shall be called by the president or secretary upon the written request (stating the purposes of the meeting) of a majority of the directors then in office or of the holders of at least 51% of the outstanding shares of common stock, par value $0.001 per share, of the Corporation (“Common Stock”) entitled to vote.

1.3 Place and Time of Meetings. Meetings of the stockholders may be held in or outside Delaware at the place and time specified by the Board or the directors or stockholders requesting the meeting.

1.4 Notice of Meetings; Waiver of Notice. Written notice of each meeting of stockholders shall be given to each stockholder entitled to vote at the meeting, except that (a) it shall not be necessary to give notice to any stockholder who submits a signed waiver of notice before or after the meeting and (b) no notice of an adjourned meeting need be given except when required under Section 1.5 of these By-laws or by law. Each notice of a meeting shall be given, personally or by mail, not less than ten (10) nor more than sixty (60) days before the meeting and shall state the date, time and place of the meeting, the means of remote communications, if any, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called. If mailed, notice shall be considered given when mailed to a stockholder at his or her address on the Corporation’s records. The attendance of any stockholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened, shall constitute a waiver of notice by him or her.

1.5 Quorum. At any meeting of stockholders, the presence in person or by proxy of the holders of a majority of the shares of Common Stock entitled to vote at the meeting shall constitute a quorum for the transaction of any business at such meeting. In the absence of a quorum, the holders of a majority of the shares of Common Stock present in person or by proxy or, if no stockholders are present, any officer entitled to preside at or to act as secretary of the meeting, may adjourn the meeting until a quorum is present. At any adjourned meeting at which a quorum is present, any action may be taken which might have been taken at the meeting as originally called. No notice of an adjourned meeting need be given if the time and place are announced at the meeting at which the adjournment is taken except that, if adjournment is for more than thirty (30) days or if, after the adjournment, a new record date is fixed for the meeting, notice of the adjourned meeting shall be given pursuant to Section 1.4 of these By-laws.

1.6 Voting; Proxies. Each stockholder of record shall be entitled to one (1) vote for every share of Common Stock registered in his, her or its name. Corporate action to be taken by stockholder vote, other than the election of directors, shall be authorized by a majority of the votes cast at a meeting of stockholders, unless a different vote is required by express provision of law, the certificate of incorporation of the Corporation (the “Certificate of Incorporation”) or these By-laws, in which case such express provision shall govern and control. Directors shall be elected in the manner provided in Section 2.1 of these By-laws. Voting need not be by ballot unless requested by a stockholder at the meeting or ordered by the chairman of the meeting. Each stockholder entitled to vote at any meeting of stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person to act for him or her by proxy. Every proxy must be signed by the stockholder or his, her or its attorney-in-fact. Proxies need not be filed with the secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. No proxy shall be valid after three (3) years from its date unless it provides otherwise.

1.7 List of Stockholders. Not less than ten (10) days prior to the date of any meeting of stockholders, the secretary of the Corporation shall prepare a complete list of stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in his name; provided, however, if the record date for determining the stockholders of the Corporation entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders of the Corporation entitled to vote as of the tenth day before the meeting date. For a period of not less than ten (10) days prior to the meeting, the list shall be available during ordinary business hours for inspection by any stockholder for any purpose germane to the meeting. During this period, the list shall be kept either (a) at a place within the city where the meeting is to be held, if that place shall have been specified in the notice of the meeting, or (b) if not so specified, at the place where the meeting is to be held. The list shall also be available for inspection by stockholders at the time and place of the meeting.

1.8 Action by Consent Without a Meeting. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing or by electronic transmission, setting forth the action so taken, shall be signed or electronically transmitted, as the case may be, by the holders of outstanding Common Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Common Stock entitled to vote thereon were present and voting. All such consents shall be filed with the secretary of the Corporation. Prompt notice of the taking of any such action without a meeting by less than unanimous written consent shall be given, to the extent required by applicable law, to those stockholders who did not consent in writing or by electronic transmission and who, if the action had been taken at a meeting, would have been entitled to notice of such meeting.

2. BOARD OF DIRECTORS.

2.1 Number, Qualification, Election and Term of Directors. The management of the business and affairs of the Corporation shall be vested in the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation directed or required to be exercised or done by the stockholders. The authorized number of directors shall be determined from time to time by the Board without amendment to the By-laws; provided, that the Board shall consist of at least one member. No reduction in the authorized number of directors may shorten the term of any incumbent director. Directors shall be elected at each annual meeting of stockholders by a plurality of the votes cast and shall hold office until the next annual meeting of stockholders and until the election and qualification of their respective successors, or until his or her earlier death, resignation or removal in the manner hereinafter provided in Section 2.9 of these By-laws. As used in these By-laws, the term “entire Board” means the total number of directors which the Corporation would have if there were no vacancies on the Board.

2.2 Quorum, Manner of Acting and Organization. A majority of the directors then in office (or the sole director if there is not more than one director then in office) shall constitute a quorum for the transaction of business at any meeting, except as provided in Section 2.10 of these By-laws. Action of the Board shall be authorized by the vote of a majority of the directors (or the sole director if there is not more than one director then in office) present at the time of the vote if there is a quorum, unless otherwise provided by law or these By-laws. In the absence of a quorum, a majority of the directors (or the sole director if there is not more than one director then in office) present may adjourn any meeting from time to time until a quorum is present.

2.3 Place of Meetings. Meetings of the Board may be held in or outside Delaware as the Board may from time to time determine.

2.4 Annual and Regular Meetings. Annual meetings of the Board, for the election of officers and consideration of other matters, may be held either (a) without notice immediately after the annual meeting of stockholders and at the same place, or (b) as soon as practicable after the annual meeting of stockholders, on notice as provided in Section 2.6 of these By-laws. Regular meetings of the Board may be held without notice at such times, dates and places as the Board determines. If the day fixed for a regular meeting is a legal holiday, the meeting shall be held on the next business day.

2.5 Special Meetings. Special meetings of the Board may be called and held at such times, dates and places as determined by the president or by any one of the directors from time to time. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting of the Board.

2.6 Notice of Meetings; Waiver of Notice. The secretary of the Corporation shall give notice of the date, time and place of each special meeting of the Board, and of each annual meeting not held immediately after the annual meeting of stockholders and at the same place, to each director by mailing the notice to the director at his or her residence or usual place of business at least three (3) days before the meeting, or by delivering it via delivery, telephone, facsimile or electronic transmission at least two (2) days before the meeting. Notice of a special meeting shall also state the purposes for which the meeting is called. Notice need not be given to any director who submits a signed waiver of notice before or after the meeting or who attends the meeting without protesting at the beginning of the meeting the transaction of any business because the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of directors need be specified in any waiver of notice. Notice of any adjourned meeting need not be given, other than by announcement at the meeting at which the adjournment is taken.

2.7 Board or Committee Action Without a Meeting. Any action required or permitted to be taken by the Board or by any committee of the Board may be taken without a meeting if all of the members of the Board or of such committee, as the case may be, consent in writing or by electronic transmission to the adoption of a resolution authorizing the action. The resolution and the consent in writing or by electronic transmission by the members of the Board or the committee shall be filed with the minutes of the proceeding of the Board or of the committee.

2.8 Participation in Board or Committee Meetings by Conference Telephone. Any or all members of the Board or of any committee of the Board may participate in a meeting of the Board or of any such committee, as the case may be, by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other and be heard at the same time. Participation by such means shall constitute presence in person at the meeting.

2.9 Resignation and Removal of Directors. Any director may resign at any time by delivering his or her resignation in writing to the president or secretary of the Corporation or to the Board, to take effect at the time specified in the resignation or, if no such time is specified, upon receipt. The acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective. Any or all of the directors may be removed at any time, either with or without cause, by the holders of a majority of the shares of Common Stock entitled to vote at an election of directors.

2.10 Vacancies. Unless otherwise provided in the Certificate of Incorporation or these By-laws, any vacancy in the Board, including one created by an increase in the number of directors, may be filled for the unexpired term by a majority vote of the remaining directors, although less than a quorum, or by a sole remaining director.

2.11 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, the Board shall have the authority to fix the compensation of directors, who shall be entitled to reimbursement of their reasonable expenses in connection with the performance of their duties.

2.12 Interested Directors. A director who is directly or indirectly a party to a contract or transaction with the Corporation, or is a director or officer of or has a financial interest in any other corporation, partnership, association or other organization which is a party to a contract or transaction with the Corporation, may be counted in determining whether a quorum is present at any meeting of the Board or of any committee of the Board at which such contract or transaction is considered or authorized, and such director may participate in such meeting and vote on such authorization to the extent permitted by applicable law, including Section 144 of the DGCL.

3. COMMITTEES.

3.1 Executive Committee. The Board, by resolution adopted by a majority of the entire Board, may designate an Executive Committee of one or more directors which shall have all the powers and authority of the Board, except as otherwise provided in the resolution, Section 141(c) of the DGCL or any other applicable law. The members of the Executive Committee shall serve at the pleasure of the Board. All actions of the Executive Committee shall be reported to the Board at its next meeting.

3.2 Other Committees. The Board, by resolution adopted by a majority of the entire Board, may designate one or more other committees of one or more directors, which shall serve at the Board’s pleasure and have such powers and duties as the Board determines.

3.3 Rules Applicable to Committees; Quorum. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of a committee, the member or members present at a meeting of the committee and not disqualified, whether or not a quorum, may unanimously appoint another director to act at the meeting in place of the absent or disqualified member. All action of a committee shall be reported to the Board at its next meeting. Each committee shall adopt rules of procedure and shall meet as provided by those rules or by resolutions of the Board. In the absence of a provision by the Board or a provision in the rules of a committee to the contrary, a majority of the directors then serving on such committee shall constitute a quorum for the transaction of business.

4. OFFICERS.

4.1 Number; Security. The officers of the Corporation shall consist of a president, a secretary, a treasurer and, if deemed necessary, expedient, or desirable by the Board, a chief financial officer, a chairman of the Board, a vice-chairman of the Board, an executive vice-president, one or more other vice-presidents and such other officers with such titles as the resolution of the Board choosing them shall designate. Except as may otherwise be provided in the resolution of the Board choosing him or her, no officer other than the chairman or vice-chairman of the Board, if any, need be a director. Any two (2) or more offices may be held by the same person. The Board may require any officer, agent or employee to give security for the faithful performance of his duties.

4.2 Authority and Duties. All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-laws or, to the extent not so provided, by the Board.

4.3 Election; Term of Office. The officers of the Corporation shall be elected by the Board and each such officer shall hold office until the election of his or her successor or his or her earlier death, resignation or removal in accordance with the provisions of Section 4.5 of these By-laws.

4.4 Subordinate Officers. The Board may appoint subordinate officers (including assistant secretaries and assistant treasurers), agents or employees, each of whom shall hold office for such period and have such powers and duties as the Board determines. The Board may delegate to any executive officer or to any committee of the Board the power to appoint and define the powers and duties of any subordinate officers, agents or employees.

4.5 Resignation and Removal of Officers. Any officer may resign at any time by delivering his or her resignation in writing to the president or secretary of the Corporation or to the Board, to take effect at the time specified in the resignation or, if no such time is specified, upon receipt. The acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective. Any or all of the officers appointed by the Board or appointed by an executive officer or by a committee of the Board may be removed by the Board, at any time, either with or without cause and, in the case of an officer appointed by an executive officer or by a committee, by the officer or committee who appointed him or her or by the president.

4.6 Vacancies. A vacancy in any office may be filled for the unexpired term in the manner prescribed in Sections 4.3 and 4.4 of these By-laws for election or appointment to the office.

4.7 The Chairman of the Board. The chairman of the Board, if any, shall preside at all meetings of the Board. Subject to the control of the Board, he or she shall have general supervision over the business of the Corporation and shall have such other powers and duties as chairmen of the Board usually have or as the Board assigns to him or her.

4.8 The President. The president shall be the president and chief executive officer (unless otherwise determined by the Board) of the Corporation and shall preside at all meetings of the Board (if there is no Chairman of the Board) and of stockholders. He or she shall have general and active management and control of the business and affairs of the Corporation subject to the control of the Board, and he or she shall have such other powers and duties as presidents of corporations usually have or as the Board assigns to him or her.

4.9 Vice President. Each vice president shall have such powers and duties as the Board or the president assigns to him or her.

4.10 The Chief Financial Officer. The chief financial officer, if any, shall be the chief financial officer of the Corporation and shall be in charge of the Corporation’s books and accounts. Subject to the control of the Board, he or she shall have such other powers and duties as the Board or the president assigns to him or her.

4.11 The Treasurer. The treasurer shall be the treasurer of the Corporation. Subject to the control of the Board, he or she shall have such other powers and duties as the Board or the chief financial officer or the president assigns to him or her.

4.12 The Secretary. The secretary shall be the secretary of, and keep the minutes of, all meetings of the Board and of the stockholders, shall be responsible for giving notice of all meetings of stockholders and of the Board and shall keep the seal and, when authorized by the Board, apply it to any instrument requiring it. Subject to the control of the Board, he or she shall have such powers and duties as the Board or the president assigns to him or her. In the absence of the secretary from any meeting, the minutes shall be kept by the person appointed for that purpose by the presiding officer.

4.13 Salaries. The Board may fix the officers’ salaries, if any, or it may authorize the president to fix the salary of any other officer.

5. SHARES.

5.1 Certificates. The Corporation’s shares shall be represented by certificates in the form approved by the Board; provided, that the Board may provide by resolution that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Each certificate shall be signed by any two of the president, a vice president, the secretary, an assistant secretary, the treasurer or an assistant treasurer, and may be sealed with the Corporation’s seal or a facsimile of the seal. Any or all of the signatures on the certificate may be a facsimile.

5.2 Transfers. Shares shall be transferable only on the Corporation’s books, upon surrender of the certificate for the shares, properly endorsed. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of certificates for shares of the Corporation. The Board may require satisfactory surety before issuing a new certificate to replace a certificate claimed to have been lost or destroyed.

5.3 Determination of Stockholders of Record. The Board may fix, in advance, a date as the record date for the determination of stockholders entitled to notice of or to vote at any meeting of the stockholders, or to express consent to or dissent from any proposal without a meeting, or to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action. The record date may not be more than sixty (60) or less than ten (10) days before the date of the meeting or more than sixty (60) days before any other action.

5.4 Addresses of Stockholders. Each stockholder shall designate to the secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to such stockholder, and, if any stockholder shall fail to designate such address, corporate notices may be served upon such stockholder by mail directed to such stockholder at its, his or her post office address, if any, as the same appears on the share record books of the Corporation or at such stockholder’s last known post office address.

6. INDEMNIFICATION.

6.1 Directors and Officers in Third Party Proceedings. Subject to the other provisions of this Article 6, the Corporation shall indemnify, to the fullest extent permitted by applicable law, as it may be amended from time to time, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director of the Corporation or an officer of the Corporation, or while a director of the Corporation or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

6.2 Directors and Officers in Actions by or in the Right of the Corporation. Subject to the other provisions of this Article 6, the Corporation shall indemnify, to the fullest extent permitted by applicable law, as it may be amended from time to time, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or while a director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; provided that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery in the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery in the State of Delaware or such other court shall deem proper.

6.3 Successful Defense. To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described in Section 6.1 or Section 6.2, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

6.4 Indemnification of Others. Subject to the other provisions of this Article 6, the Corporation shall have power to indemnify its employees and its agents to the extent not prohibited by the DGCL or other applicable law. The Board shall have the power to delegate the determination of whether employees or agents shall be indemnified to such person or persons as the Board determines.

6.5 Advanced Payment of Expenses. Expenses (including attorneys’ fees) incurred by an officer or director of the Corporation in defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultimately be determined that the person is not entitled to be indemnified under this Article 6 or the DGCL. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems reasonably appropriate and shall be subject to the Corporation’s expense guidelines. The right to advancement of expenses shall not apply to any claim for which indemnity is excluded pursuant to these By-laws, but shall apply to any Proceeding referenced in Section 6.6(ii) or 6.6(iii) prior to a determination that the person is not entitled to be indemnified by the Corporation.

6.6 Limitation on Indemnification. Subject to the requirements in Section 6.3 and the DGCL, the Corporation shall not be obligated to indemnify any person pursuant to this Article 6 in connection with any Proceeding (or any part of any Proceeding):

(i) for which payment has actually been made to or on behalf of such person under any statute, insurance policy, indemnity provision, or otherwise, except with respect to any excess beyond the amount paid;

(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or any successor thereto (the “1934 Act”), or similar provisions of federal, state or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);

(iii) for any reimbursement of the Corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person from the sale of securities of the Corporation, as required in each case under the 1934 Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Corporation of profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlement arrangements);

(iv) initiated by such person against the Corporation or its directors, officers, employees, agents or other indemnitees, unless (a) the Board authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (b) the Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under applicable law, (c) otherwise required to be made under Section 6.7 or (d) otherwise required by applicable law; or

(v) if prohibited by applicable law; provided, however, that if any provision or provisions of this Article 6 shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article 6 (including, without limitation, each portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (2) to the fullest extent possible, the provisions of this Article 6 (including, without limitation, each such portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

6.7 Determination; Claim. If a claim for indemnification or advancement of expenses under this Article 6 is not paid in full within 90 days after receipt by the Corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The Corporation shall indemnify such person against any and all expenses that are incurred by such person in connection with any action for indemnification or advancement of expenses from the Corporation under this Article 6, to the extent such person is successful in such action, and to the extent not prohibited by law. In any such claim, the Corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled to the requested indemnification or advancement of expenses.

6.8 Non-Exclusivity of Rights. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article 6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any statute, By-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.

6.9 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.

6.10 Survival of Rights. The rights to indemnification and advancement of expenses conferred by this Article 6 shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

6.11 Effect of Repeal or Modification. Any amendment, alteration or repeal of this Article 6 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.

6.12 Certain Definitions. For the purposes of this Article 6 of these By-laws, the following definitions shall apply:

References to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article 6 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.

References to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article 6.

7. OFFICES.

7.1 Registered Office. The initial registered office of the Corporation in the State of Delaware shall be at 251 Little Falls Drive, New Castle County Wilmington, Delaware 19808. The name of the initial registered agent of the Corporation at such address is the Corporation Service Company.

7.2 Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board may from time to time determine or as may be necessary or useful in connection with the business of the Corporation.

8. MISCELLANEOUS.

8.1 Seal. The Board may adopt a corporate seal, which shall be in the form of a circle and shall bear the Corporation’s name and the year and state in which it was incorporated.

8.2 Fiscal Year. The Board may determine the Corporation’s fiscal year. Until changed by the Board, the Corporation’s fiscal year shall be the calendar year.

8.3 Voting of Shares in Other Corporations. Shares in other corporations which are held by the Corporation may be represented and voted by the president or a vice president of this Corporation or by proxy or proxies appointed by one of them. The Board may, however, appoint some other person to vote the shares.

8.4 Amendments. Any By-law (including these By-laws) may be amended, repealed or adopted by the stockholders or by a majority of the entire Board in any manner not inconsistent with the DGCL or the Certificate of Incorporation.

8.5 Conflict with Applicable Law or Certificate of Incorporation. These By-laws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these By-laws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation, as applicable.

Exhibit 4.1

THIRD SUPPLEMENTAL INDENTURE

THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”), dated as of November 8, 2023, between Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Issuer”), and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), a national banking association, as trustee (the “Trustee”), supplementing the Indenture for Senior Debt Securities, dated as of July 6, 2016 (the indenture as so supplemented, “Indenture”), as supplemented by the Second Supplemental Indenture, dated as of May 14, 2019 (the “Second Supplemental Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Issuer previously issued its 2.00% Convertible Senior Notes due 2026 (the “Notes”) pursuant to the Indenture;

WHEREAS, on September 26, 2023, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”), by and among the Issuer, Alfasigma S.p.A. (“Alfasigma”) and Interstellar Acquisition Inc. (“Merger Sub”), pursuant to which Merger Sub commenced a tender offer to purchase for cash all of the outstanding shares of Common Stock, par value $0.001 per share, of the Issuer (the “Common Stock”) at a price per share of $19.00 in cash, without interest and subject to any applicable withholding taxes;

WHEREAS, on November 8, 2023, pursuant to the Merger Agreement, Merger Sub merged with and into the Issuer, with the Issuer surviving as a wholly owned subsidiary of Alfasigma (the “Merger”), and each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than certain excluded shares or dissenting shares of Common Stock as described in the Merger Agreement) was converted into the right to receive $19.00 in cash, without interest and subject to applicable withholding taxes;

WHEREAS, pursuant to Section 14.07(a) of the Second Supplemental Indenture, the Merger constitutes a Share Exchange Event, and the Indenture provides that, prior to or at the Effective Time, the Issuer shall execute with the Trustee a supplemental indenture, without the consent of any Holders of Notes as permitted by Section 10.02(k) of the Second Supplemental Indenture, providing that, from and after the Effective Time, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into Reference Property;

WHEREAS, pursuant to the terms of the Merger Agreement and Section 14.07(a) of the Second Supplemental Indenture, each unit of Reference Property consists of $19.00 in cash; and

WHEREAS, all conditions for the execution and delivery of this Third Supplemental Indenture have been complied with or have been done or performed.

NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:

In consideration of the foregoing and for other good and valuable consideration, receipt of which is hereby acknowledged, the Issuer and the Trustee agree as follows for the equal and ratable benefit of the Holders of the Notes:

ARTICLE I

Terms

Section 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

ARTICLE II

Amendments

Section 2.01. Conversion Right. In accordance with Section 14.07(a) of the Second Supplemental Indenture, from and after the Effective Time, and to the extent permitted by Section 14.01, the right to convert each $1,000 principal amount of Notes is hereby changed into a right to convert such principal amount of Notes solely into a number of units of Reference Property equal to the Conversion Rate in effect on the Conversion Date multiplied by the Stock Price paid per share of Common Stock in the Merger, (A) which in the case of a conversion in connection with a Make-Whole Fundamental Change as described in the second sentence of Section 14.03(a) will be cash equal to $175.0337 per $1,000 principal amount of Notes based on a Conversion Rate equal to (i) 9.2123 shares of Common Stock per $1,000 principal amount of Notes plus (ii) no Additional Shares (no Additional Shares are payable as determined by reference to the table set forth in Section 14.03(e) of the Second Supplemental Indenture based on the Effective Date of the Make-Whole Fundamental Change being November 8, 2023 and the Stock Price paid per share of Common Stock in the Make-Whole Fundamental Change being $19.00), and (B) which in the case of a conversion at all other times when such Notes are convertible beginning immediately after the Business Day immediately preceding the Fundamental Change Repurchase Date corresponding to such Fundamental Change will be cash equal to $175.0337 per $1,000 principal amount of Notes. Accordingly, any reference in respect of the Holders’ conversion rights to a share of Common Stock in the Indenture shall be deemed a reference to a right to receive an amount equal to $19.00 and the provisions of the Indenture, as modified herein, shall continue to apply, mutatis mutandis, to the Holders’ right to convert the Notes into Reference Property.

Section 2.02. Last Reported Sale Price of the Common Stock. With respect to any date from and after the Effective Time, the Last Reported Sale Price and Stock Price shall be $19.00, notwithstanding anything to the contrary in the Indenture.

ARTICLE III

Miscellaneous Provisions

Section 3.01. Effectiveness; Construction. The Third Supplemental Indenture shall become effective upon its execution and delivery by the Issuer and the Trustee as of the date hereof. Upon such effectiveness, the Indenture shall be supplemented in accordance herewith. The Third Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby. The Indenture and the Third Supplemental Indenture shall henceforth be read and construed together.

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Section 3.02. Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

Section 3.03. Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided, including, without limitation, Section 14.09 of the Second Supplemental Indenture. The recitals contained in the Third Supplemental Indenture shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of the Third Supplemental Indenture or as to the calculations described in Section 2.01 hereof.

Section 3.04. No Third-Party Beneficiaries. Nothing in the Third Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties to the Indenture, any Paying Agent, any Conversion Agent, any authenticating agent, any Security Registrar and their successors under the Indenture or the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture, as supplemented hereby.

Section 3.05. Severability. In the event any provision of the Third Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.

Section 3.06. Headings. The Article and Section headings of the Third Supplemental Indenture have been inserted for convenience of reference only and are not to be considered a part of the Third Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 3.07. Successors. All agreements of the Issuer and the Trustee in the Third Supplemental Indenture shall bind their respective successors and assigns whether so expressed or not.

Section 3.08. Governing Law. THE THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK.

Section 3.09. Counterpart Signatures. The Third Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

[Signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first written above.

	INTERCEPT PHARMACEUTICALS, INC.


	By:	/s/ Michele Cera
		Name: Michele Cera
		Title: Executive Director

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	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee


	By:	/s/ Laurel Casasanta
		Name: Laurel Casasanta
		Title: Vice President

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Exhibit 4.2

SECOND SUPPLEMENTAL INDENTURE

SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of November 8, 2023, between Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Issuer”), and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), a national banking association, as trustee (the “Trustee”), supplementing the indenture, dated as of August 17, 2021 (the indenture as so supplemented, “Indenture”), as supplemented by the First Supplemental Indenture, dated as of August 17, 2021 (the “First Supplemental Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Issuer previously issued its 3.50% Convertible Senior Secured Notes due 2026 (the “Notes”) pursuant to the Indenture;

WHEREAS, on November 8, 2023, pursuant to the Merger Agreement, Merger Sub merged with and into the Issuer, with the Issuer surviving as a wholly owned subsidiary of Alfasigma (the “Merger”), and each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than certain excluded shares of Common Stock as described in the Merger Agreement) was converted into the right to receive $19.00 in cash, without interest and subject to applicable withholding taxes;

WHEREAS, pursuant to Section 14.07(a) of the First Supplemental Indenture, the Merger constitutes a Share Exchange Event, and the Indenture provides that, prior to or at the Effective Time, the Issuer shall execute with the Trustee a supplemental indenture, without the consent of any Holders of Notes as permitted by Section 10.02(k) of the First Supplemental Indenture, providing that, from and after the Effective Time, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into Reference Property;

WHEREAS, pursuant to the terms of the Merger Agreement and Section 14.07(a) of the First Supplemental Indenture, each unit of Reference Property consists of $19.00 in cash; and

WHEREAS, all conditions for the execution and delivery of this Second Supplemental Indenture have been complied with or have been done or performed.

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

ARTICLE I

Terms

Section 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

ARTICLE II

Amendments

Section 2.01. Conversion Right. In accordance with Section 14.07(a) of the First Supplemental Indenture, from and after the Effective Time, and to the extent permitted by Section 14.01, the right to convert each $1,000 principal amount of Notes is hereby changed into a right to convert such principal amount of Notes solely into a number of units of Reference Property equal to the Conversion Rate in effect on the Conversion Date multiplied by the Stock Price paid per share of Common Stock in the Merger, (A) which in the case of a conversion in connection with a Make-Whole Fundamental Change as described in the second sentence of Section 14.03(a) will be cash equal to $1096.7161 per $1,000 principal amount of Notes based on a Conversion Rate equal to (i) 47.7612 shares of Common Stock per $1,000 principal amount of Notes plus (ii) the Additional Shares, or 9.9607 shares of Common Stock per $1,000 principal amount of Notes (as determined by reference to the table set forth in Section 14.03(e) of the First Supplemental Indenture based on the Effective Date of the Make-Whole Fundamental Change being November 8, 2023 and the Stock Price paid per share of Common Stock in the Make-Whole Fundamental Change being $19.00), and (B) which in the case of a conversion at all other times when such Notes are convertible beginning immediately after the Business Day immediately preceding the Fundamental Change Repurchase Date corresponding to such Fundamental Change will be cash equal to $907.4628 per $1,000 principal amount of Notes. Accordingly, any reference in respect of the Holders’ conversion rights to a share of Common Stock in the Indenture shall be deemed a reference to a right to receive an amount equal to $19.00 and the provisions of the Indenture, as modified herein, shall continue to apply, mutatis mutandis, to the Holders’ right to convert the Notes into Reference Property.

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ARTICLE III

Miscellaneous Provisions

Section 3.01. Effectiveness; Construction. The Second Supplemental Indenture shall become effective upon its execution and delivery by the Issuer and the Trustee as of the date hereof. Upon such effectiveness, the Indenture shall be supplemented in accordance herewith. The Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby. The Indenture and the Second Supplemental Indenture shall henceforth be read and construed together.

Section 3.02. Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

Section 3.03. Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided, including, without limitation, Section 14.09 of the First Supplemental Indenture. The recitals contained in the Second Supplemental Indenture shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of the Second Supplemental Indenture or as to the calculations described in Section 2.01 hereof.

Section 3.04. No Third-Party Beneficiaries. Nothing in the Second Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties to the Indenture, any Paying Agent, any Conversion Agent, any authenticating agent, any Security Registrar and their successors under the Indenture or the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture, as supplemented hereby.

Section 3.05. Severability. In the event any provision of the Second Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.

Section 3.06. Headings. The Article and Section headings of the Second Supplemental Indenture have been inserted for convenience of reference only and are not to be considered a part of the Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 3.07. Successors. All agreements of the Issuer and the Trustee in the Second Supplemental Indenture shall bind their respective successors and assigns whether so expressed or not.

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Section 3.08. Governing Law. THE SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK.

Section 3.09. Counterpart Signatures. The Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

[Signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first written above.

	INTERCEPT PHARMACEUTICALS, INC.


	By:	/s/ Michele Cera
		Name: Michele Cera
		Title: Executive Director

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee


	By:	/s/ Laurel Casasanta
		Name: Laurel Casasanta
		Title: Vice President

Exhibit 99.1

November 8, 2023

To:

Holders of Intercept Pharmaceuticals, Inc.
2.00% Convertible Senior Notes Due 2026 (CUSIP No. 45845P AB4¹)

and

U.S. Bank Trust Company, National Association
as Trustee, Paying Agent and Conversion Agent
Global Corporate Trust Services
185 Asylum Street, 27th Floor, Hartford, Connecticut 06103
Attn: Laurel Casasanta (Intercept Pharmaceuticals, Inc.)

Re:	Notice of Supplemental Indenture and Make-Whole Fundamental Change

Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), a national banking organization organized under the laws of the United States, as trustee (the “Trustee”), executed that certain Indenture, dated as of July 6, 2016 (as so supplemented, the “Indenture”), as supplemented by that Second Supplemental Indenture, dated as of May 14, 2019, between the Issuer and the Trustee (the “Second Supplemental Indenture”), concerning the 2.00% Convertible Senior Notes Due 2026 (the “Notes”). This Notice is being delivered to the Holders and the Trustee pursuant to the Indenture. Capitalized terms used but not otherwise defined in this Notice have the meanings given to them in the Indenture. A copy of the Indenture was filed as Exhibit 4.1 to Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on July 6, 2016. A copy of the Second Supplemental Indenture was filed as Exhibit 4.2 to Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on May 14, 2019. The Trustee also serves as Paying Agent and Conversion Agent under the Indenture.

On September 26, 2023, the Company entered into an Agreement and Plan of Merger, dated as of September 26, 2023 (the “Merger Agreement”), by and among the Company, Alfasigma S.p.A. (“Parent”) and Interstellar Acquisition Inc. (“Merger Sub”).

On October 31, 2023, the Company provided Holders of the Notes notice that the transactions contemplated by the Merger Agreement were expected to constitute a Fundamental Change, Make-Whole Fundamental Change and Share Exchange Event and, as a result, Holders may surrender their Notes for conversion pursuant the terms and conditions of the Indenture.

Pursuant and subject to the Merger Agreement, Parent and Merger Sub commenced a tender offer (the “Offer”) on October 11, 2023 to acquire all of the outstanding shares of Common Stock, at a purchase price of $19.00 per share, net to the seller in cash (the “Offer Price”), without interest, less any applicable withholding taxes. The Offer was consummated on November 8, 2023, and following the consummation of the Offer, Merger Sub was merged with and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the “Merger”, and together with the Offer, the “Transaction”). At the effective time of the Merger, each share of Common Stock then outstanding (other than the excluded shares and dissenting shares as described in the Merger Agreement) was converted into the right to receive the Offer Price, without interest, less any applicable withholding taxes (the “Merger Consideration”).

¹ The CUSIP number is included solely for the convenience of the Holders of Notes. Neither the Issuer nor the Trustee shall be responsible for the selection or use of the CUSIP number, nor is any representation made as to its correctness with respect to the Notes or as indicated in this notice.

The consummation of the Transaction constitutes a Share Exchange Event and a Make-Whole Fundamental Change under the Indenture, each with an effective date of November 8, 2023, the date of the consummation of the Transaction. For the avoidance of doubt, this Notice does NOT constitute the Fundamental Change Issuer Notice, which the Company will subsequently issue, pursuant to which each Holder will have the right to require the Company to repurchase its Notes. As described below, the Indenture also provides that, as a result of the Share Exchange Event, the Company and the Trustee were required to execute a supplemental indenture to change each Holder’s right to convert each $1,000 principal amount of Notes into the right to convert each $1,000 principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (which in the case of the Merger will be cash, based on the Merger Consideration) that a Holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to the effective time of the Merger would have owned or been entitled to receive upon the effective time of the Merger (the “Reference Property”).

As described below, the Indenture further provides that, as a result of the Make-Whole Fundamental Change, each Holder of the Notes will have the right to surrender the Holder’s Notes for conversion. Additional Shares will be added to the Conversion Rate for Notes surrendered in connection with the Make-Whole Fundamental Change, pursuant to Section 14.03 of the Second Supplemental Indenture.

This Notice constitutes notice of the following, all as described in more detail below:

Notice of Execution of Supplemental Indenture

Conversion Right: Notice of Effective Date of Make-Whole Fundamental Change, Make-Whole Adjustment Period, Conversion Rate and Convertibility

You should review this Notice carefully and consult with your own financial and tax advisors. You must make your own decision as to whether or not to surrender your Notes for repurchase or to exercise your conversion rights (if at all) and, if so, the timing of the conversion and the amount of Notes to surrender or convert. None of the Company, Parent, Merger Sub, the Trustee, the Paying Agent, the Conversion Agent or any of their respective affiliates are making any representation or recommendation to any Holder as to whether Holders should elect to require the Company to repurchase their Notes or convert their Notes or take or decline taking any other action.

Notice of Execution of Supplemental Indenture

On November 8, 2023, pursuant to Sections 14.07(b) of the Second Supplemental Indenture, the Company and the Trustee have entered into a Third Supplemental Indenture to the Indenture (the “Third Supplemental Indenture”) amending the terms of the Indenture to provide that each Holder’s right to convert each $1,000 principal amount of Notes be changed into a right to convert such principal amount of Notes into a number of units of Reference Property, with each unit of Reference Property consisting of $19.00 in cash. A copy of the Third Supplemental Indenture is attached hereto as Exhibit A. As a result, for all conversions that occur after the effective date of the Merger, the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the relevant Conversion Date (as may be increased by any Additional Shares), multiplied by the Merger Consideration. Please see below under “Conversion Rights” for information on the Conversion Rate and adjustments to the Conversion Rate in connection with the Make-Whole Fundamental Change.

Conversion Rights

Notice of Effective Date of Make-Whole Fundamental Change, Make-Whole Adjustment Period, Conversion Rate and Convertibility

The effective date of the Make-Whole Fundamental Change resulting from the consummation of the Offer and the Merger is November 8, 2023. As a result of the Make-Whole Fundamental Change, a Holder may surrender its Notes for conversion. In accordance with Sections 2.01 and 14.07 of the Second Supplemental Indenture, Holders who surrender their Notes for conversion from and after the effective time of the Merger at any time when the Notes are convertible will receive cash in an amount equal to the Conversion Rate in effect immediately prior to the effective date of the Merger, multiplied by the Offer Price per share of $19.00 (less any applicable withholding taxes), and will not receive any shares of the Common Stock. Because the consummation of the Transaction constitutes a Make-Whole Fundamental Change, in accordance with Section 14.03 of the Second Supplemental Indenture, the Conversion Rate for Notes surrendered for conversion any time beginning on November 8, 2023, the effective date of the Make-Whole Fundamental Change, until 5:00 p.m. (New York City time) on the Business Day immediately prior to the Fundamental Change Repurchase Date (which shall be specified in the Fundamental Change Issuer Notice), will be increased to the Make-Whole Conversion Rate as described below.

Conversion Rate and Make-Whole Adjustment

The Conversion Rate in effect immediately prior to the Make-Whole Fundamental Change is 9.2123 shares of Common Stock per $1,000 principal amount of Notes (the “Base Conversion Rate”), which equates to a Conversion Price of approximately $108.5505 per share of Common Stock. No Additional Shares will be added to the Base Conversion Rate for Notes that are converted during the period from and including November 8, 2023 up to and including the Business Day immediately prior to the Fundamental Change Repurchase Date (which shall be specified in the Fundamental Change Issuer Notice) (such period, the “Make-Whole Adjustment Period”), pursuant to Section 14.03 of the Second Supplemental Indenture. Accordingly, the Conversion Rate of any Notes surrendered for conversion during the Make-Whole Adjustment Period (the “Make-Whole Conversion Rate”) will be equal to the Base Conversion Rate.

Pursuant to the Merger Agreement, upon the consummation of the Merger, each share of Common Stock (other than excluded shares and dissenting shares as described in the Merger Agreement) was converted into the right to receive $19.00 in cash, without interest, less any applicable withholding taxes. Therefore, any Notes that are surrendered for conversion during the Make-Whole Adjustment Period will be converted into the right to receive an amount in cash equal to $175.0337 per $1,000 principal amount of Notes (the “Settlement Amount”), based on a Make-Whole Conversion Rate equal to 9.2123 shares per $1,000 principal amount of Notes converted multiplied by $19.00 per share.

IMPORTANT: The value you will receive upon conversion of the Notes will be substantially less than the Fundamental Change Repurchase Price that you would receive if you validly exercise your option to require the Company to repurchase for cash all of the Notes, pursuant to the Fundamental Change Issuer Notice. Pursuant to Section 15.02 of the Second Supplemental Indenture, the Company will issue the Fundamental Change Issuer Notice by November 28, 2023 which is the 20^th calendar day after the effective date of the Transaction, which shall specify, among others, the Fundamental Change Repurchase Date and the Fundamental Change Repurchase Price.

Convertibility After the Make-Whole Adjustment Period

Any Holder converting its Notes after the Make-Whole Adjustment Period will not be entitled to receive the Make-Whole Conversion Rate. Notes that are surrendered for conversion following the Make-Whole Adjustment Period will be converted into the right to receive an amount in cash equal to $175.0337 per $1,000 principal amount of Notes, based on the Base Conversion Rate of 9.2123 shares per $1,000 principal amount of Notes converted multiplied by $19.00 per share.

Conversion Procedures

A Holder may convert a portion of a Note, but only if that portion is an integral multiple of $1,000 in principal amount. The Trustee has informed the Company that, as of the date of this Notice, the Depositary is the sole registered Holder of the Notes, all custodians and beneficial holders of the Notes hold the Notes through DTC accounts and there are no certificated Notes in non-global form. To convert a beneficial interest in a Note that is a Global Note, the beneficial owner must comply with the applicable procedures of the Depositary to cause to be delivered to the Conversion Agent through the facilities of the Depositary in accordance with the applicable procedures of the Depositary, the interest in the Global Note to be converted, accompanied by payment of any documentary, stamp or similar issue or transfer taxes, in accordance with Sections 14.02(d) and 14.02(e) of the Second Supplemental Indenture.

The Conversion Agent is: U.S. Bank Trust Company, National Association

The Trustee is acting as the Conversion Agent, and its address and telephone number are as follows:

U.S. Bank Trust Company, National Association

Global Corporate Trust Services

Attn: Corporate Actions

111 Fillmore Avenue

St. Paul, Minnesota 55107-1402

Telephone: (800) 934-6802

Facsimile: (651) 466-7367

Email: cts.conversions@usbank.com

Copies of this notice may be obtained from the Paying Agent and Conversion Agent at its address set forth above.

BACKUP WITHHOLDING AND WITHHOLDING TAX: INTERNAL REVENUE FORMS

To avoid the application of a 24% backup withholding tax on any payments made upon the disposition of a Note pursuant to the exercise of the conversion rights, each Holder (or other payee) that is a United States person (as defined for United States federal income tax purposes) should complete and provide an Internal Revenue Service (“IRS”) Form W- 9 to the Paying Agent. Each such Holder, when completing an IRS Form W-9, is required to provide the Holder’s correct taxpayer identification number (“TIN”) (generally the Holder’s Social Security or federal employer identification number), along with certain other information, and to certify under penalties of perjury that the Holder is a United States person (as defined for United States federal income tax purposes), that such TIN is correct (or that such Holder is awaiting a TIN) and that the United States person is not subject to backup withholding. Failure to provide the correct information on IRS Form W-9 or an adequate basis for an exemption may subject such Holder to a penalty imposed by the IRS and backup withholding at a rate of 24% of any payment received pursuant to the exercise of the conversion rights. See the instructions enclosed with the IRS Form W-9 included in this Notice for instructions.

Holders that are not United States persons (as defined for United States federal income tax purposes) should not complete an IRS Form W-9. Instead, to avoid withholding and/or backup withholding, each such foreign Holder should complete an applicable IRS Form W-8. Foreign Holders may obtain an IRS Form W-8 and instructions from the IRS’s website (http://www.irs.gov).

Failure to include a properly completed IRS Form W-9 or applicable IRS Form W-8 may result in the application of U.S. backup withholding or withholding tax. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If backup withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is furnished to the IRS.

GENERAL

A copy of this Notice has been sent to all Holders of record of the Notes as of November 8, 2023.

None of the Company, Parent, Merger Sub, the Trustee, the Paying Agent, the Conversion Agent or any of their respective affiliates or any other person will be under any duty to give notification of any defects or irregularities in tenders or conversions, or withdrawal of tenders, or incur any liability for failure to give any such notification.

InTERCEPT PHARMACEUTICALS, INC.

Exhibit A

THIRD SUPPLEMENTAL INDENTURE

THIRD SUPPLEMENTAL INDENTURE

RECITALS OF THE COMPANY

WHEREAS, the Issuer previously issued its 2.00% Convertible Senior Notes due 2026 (the “Notes”) pursuant to the Indenture;

WHEREAS, pursuant to the terms of the Merger Agreement and Section 14.07(a) of the Second Supplemental Indenture, each unit of Reference Property consists of $19.00 in cash; and

WHEREAS, all conditions for the execution and delivery of this Third Supplemental Indenture have been complied with or have been done or performed.

NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:

ARTICLE I

Terms

Section 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

ARTICLE II

Amendments

ARTICLE III

Miscellaneous Provisions

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Section 3.02. Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

Section 3.07. Successors. All agreements of the Issuer and the Trustee in the Third Supplemental Indenture shall bind their respective successors and assigns whether so expressed or not.

Section 3.08. Governing Law. THE THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK.

[Signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first written above.

	INTERCEPT PHARMACEUTICALS, INC.


	By:	/s/ Michele Cera
		Name: Michele Cera
		Title: Executive Director

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	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee


	By:	/s/ Laurel Casasanta
		Name: Laurel Casasanta
		Title: Vice President

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Exhibit 99.2

November 8, 2023

To:

Holders of Intercept Pharmaceuticals, Inc.
3.50% Convertible Senior Secured Notes Due 2026 (CUSIP No. 45845P AD0¹)

and

U.S. Bank Trust Company, National Association
as Trustee, Paying Agent and Conversion Agent
Global Corporate Trust Services
185 Asylum Street, 27th Floor, Hartford, Connecticut 06103
Attn: Laurel Casasanta (Intercept Pharmaceuticals, Inc.)

Re:	Notice of Supplemental Indenture and Make-Whole Fundamental Change

Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), a national banking organization organized under the laws of the United States, as trustee (the “Trustee”), executed that certain Indenture, dated as of August 17, 2021 (as so supplemented, the “Indenture”), as supplemented by that First Supplemental Indenture, dated as of August 17, 2021, between the Issuer and the Trustee (the “First Supplemental Indenture”), concerning the 3.50% Convertible Senior Secured Notes due 2026 (the “Notes”). This Notice is being delivered to the Holders and the Trustee pursuant to the Indenture. Capitalized terms used but not otherwise defined in this Notice have the meanings given to them in the Indenture. Copies of the Indenture and the First Supplemental Indenture were filed as Exhibits 4.1 and 4.2 to Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on August 23, 2021. The Trustee also serves as Paying Agent and Conversion Agent under the Indenture.

This Notice constitutes notice of the following, all as described in more detail below:

Notice of Execution of Supplemental Indenture

Conversion Right: Notice of Effective Date of Make-Whole Fundamental Change, Make-Whole Adjustment Period, Conversion Rate and Convertibility

Notice of Execution of Supplemental Indenture

On November 8, 2023, pursuant to Sections 14.07(b) of the First Supplemental Indenture, the Company and the Trustee have entered into a Second Supplemental Indenture to the Indenture (the “Second Supplemental Indenture”) amending the terms of the Indenture to provide that each Holder’s right to convert each $1,000 principal amount of Notes be changed into a right to convert such principal amount of Notes into a number of units of Reference Property, with each unit of Reference Property consisting of $19.00 in cash. A copy of the Second Supplemental Indenture is attached hereto as Exhibit A. As a result, for all conversions that occur after the effective date of the Merger, the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the relevant Conversion Date (as may be increased by any Additional Shares), multiplied by the Merger Consideration. Please see below under “Conversion Rights” for information on the Conversion Rate and adjustments to the Conversion Rate in connection with the Make-Whole Fundamental Change.

Conversion Rights

Notice of Effective Date of Make-Whole Fundamental Change, Make-Whole Adjustment Period, Conversion Rate and Convertibility

The effective date of the Make-Whole Fundamental Change resulting from the consummation of the Offer and the Merger is November 8, 2023. As a result of the Make-Whole Fundamental Change, a Holder may surrender its Notes for conversion. In accordance with Sections 2.01 and 14.07 of the First Supplemental Indenture, Holders who surrender their Notes for conversion from and after the effective time of the Merger at any time when the Notes are convertible will receive cash in an amount equal to the Conversion Rate in effect immediately prior to the effective date of the Merger, multiplied by the Offer Price per share of $19.00 (less any applicable withholding taxes), and will not receive any shares of the Common Stock. Because the consummation of the Transaction constitutes a Make-Whole Fundamental Change, in accordance with Section 14.03 of the First Supplemental Indenture, the Conversion Rate for Notes surrendered for conversion any time beginning on November 8, 2023, the effective date of the Make-Whole Fundamental Change, until 5:00 p.m. (New York City time) on the Business Day immediately prior to the Fundamental Change Repurchase Date (which shall be specified in the Fundamental Change Issuer Notice), will be increased to the Make-Whole Conversion Rate as described below.

Conversion Rate and Make-Whole Adjustment

The Conversion Rate in effect immediately prior to the Make-Whole Fundamental Change is 47.7612 shares of Common Stock per $1,000 principal amount of Notes (the “Base Conversion Rate”), which equates to a Conversion Price of approximately $20.9375 per share of Common Stock. Additional Shares will be added to the Base Conversion Rate for Notes that are converted during the period from and including November 8, 2023 up to and including the Business Day immediately prior to the Fundamental Change Repurchase Date (which shall be specified in the Fundamental Change Issuer Notice) (such period, the “Make-Whole Adjustment Period”), pursuant to Section 14.03 of the First Supplemental Indenture. Accordingly, the Conversion Rate of any Notes surrendered for conversion during the Make-Whole Adjustment Period (the “Make-Whole Conversion Rate”) will be equal to 57.7219 shares of Common Stock per $1,000 principal amount of Notes, determined by adding the Base Conversion Rate of 47.7612 and the Additional Shares in the amount of 9.9607, as determined pursuant to Section 14.03(e) of the First Supplemental Indenture.

Pursuant to the Merger Agreement, upon the consummation of the Merger, each share of Common Stock (other than excluded shares and dissenting shares as described in the Merger Agreement) was converted into the right to receive $19.00 in cash, without interest, less any applicable withholding taxes. Therefore, any Notes that are surrendered for conversion during the Make-Whole Adjustment Period will be converted into the right to receive an amount in cash equal to $1,096.7161 per $1,000 principal amount of Notes (the “Settlement Amount”), based on a Make-Whole Conversion Rate multiplied by $19.00 per share.

Upon the expiration of the Make-Whole Adjustment Period at 5:00 p.m., New York City time, on the Business Day immediately prior to the Fundamental Change Repurchase Date (which shall be specified in the Fundamental Change Issuer Notice), the Conversion Rate will automatically, without further notice, return to the Base Conversion Rate. Accordingly, if any Holder fails to convert its Notes during the Make-Whole Fundamental Change Period, that Holder will lose its right to convert its Notes at the increased Make-Whole Conversion Rate.

Convertibility After the Make-Whole Adjustment Period

Any Holder converting its Notes after the Make-Whole Adjustment Period will not be entitled to receive the Make-Whole Conversion Rate. Notes that are surrendered for conversion following the Make-Whole Adjustment Period will be converted into the right to receive an amount in cash equal to $907.4628 per $1,000 principal amount of Notes, based on the Base Conversion Rate of 47.7612 shares per $1,000 principal amount of Notes converted multiplied by $19.00 per share.

Conversion Procedures

The Conversion Agent is: U.S. Bank Trust Company, National Association

The Trustee is acting as the Conversion Agent, and its address and telephone number are as follows:

U.S. Bank Trust Company, National Association

Global Corporate Trust Services

Attn: Corporate Actions

111 Fillmore Avenue

St. Paul, Minnesota 55107-1402

Telephone: (800) 934-6802

Facsimile: (651) 466-7367

Email: cts.conversions@usbank.com

Copies of this notice may be obtained from the Paying Agent and Conversion Agent at its address set forth above.

BACKUP WITHHOLDING AND WITHHOLDING TAX: INTERNAL REVENUE FORMS

GENERAL

A copy of this Notice has been sent to all Holders of record of the Notes as of November 8, 2023.

InTERCEPT PHARMACEUTICALS, INC.

Exhibit A

SECOND SUPPLEMENTAL INDENTURE

SECOND SUPPLEMENTAL INDENTURE

RECITALS OF THE COMPANY

WHEREAS, the Issuer previously issued its 3.50% Convertible Senior Secured Notes due 2026 (the “Notes”) pursuant to the Indenture;

WHEREAS, on November 8, 2023, pursuant to the Merger Agreement, Merger Sub merged with and into the Issuer, with the Issuer surviving as a wholly owned subsidiary of Alfasigma (the “Merger”), and each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than certain excluded shares of Common Stock as described in the Merger Agreement) was converted into the right to receive $19.00 in cash, without interest and subject to applicable withholding taxes;

WHEREAS, pursuant to the terms of the Merger Agreement and Section 14.07(a) of the First Supplemental Indenture, each unit of Reference Property consists of $19.00 in cash; and

WHEREAS, all conditions for the execution and delivery of this Second Supplemental Indenture have been complied with or have been done or performed.

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

ARTICLE I

Terms

Section 1.01. Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

ARTICLE II

Amendments

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ARTICLE III

Miscellaneous Provisions

Section 3.02. Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

Section 3.03. Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided, including, without limitation, Section 14.09 of the First Supplemental Indenture. The recitals contained in the Second Supplemental Indenture shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of the Second Supplemental Indenture or as to the calculations described in Section 2.01 hereof.

Section 3.07. Successors. All agreements of the Issuer and the Trustee in the Second Supplemental Indenture shall bind their respective successors and assigns whether so expressed or not.

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Section 3.08. Governing Law. THE SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK.

[Signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first written above.

	INTERCEPT PHARMACEUTICALS, INC.


	By:	/s/ Michele Cera
		Name: Michele Cera
		Title: Executive Director

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee


	By:	/s/ Laurel Casasanta
		Name: Laurel Casasanta
		Title: Vice President

Cover	Nov. 08, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Nov. 08, 2023
Current Fiscal Year End Date	--12-31
Entity File Number	001-35668
Entity Registrant Name	Intercept Pharmaceuticals, Inc.
Entity Central Index Key	0001270073
Entity Tax Identification Number	22-3868459
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	305 Madison Avenue
Entity Address, City or Town	Morristown
Entity Address, State or Province	NJ
Entity Address, Postal Zip Code	07960
City Area Code	646
Local Phone Number	747-1000
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	ICPT
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false