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$OTLY
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6-K
Oatly Group AB · Sep 30, 4:14 PM ET
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Oatly Group AB 6-K
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Contents
122
Article IDEFINITIONS
Section 1.01 Definitions. The terms defined in this Section 1.01 (Definitions) (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of these Conditions and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.
Section 1.02 Interpretation.
Article IIISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “9.25% Convertible Senior PIK Notes due 2028” and shall bear interest at the rate of 9.25% per annum. The aggregate principal amount of Notes that may be executed and delivered under these Conditions is limited to US$200,100,000 except for Notes executed and delivered upon the registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.06 (Exchange and Registration of Transfer of Notes; Restrictions on Transfer), Section 2.07 (Mutilated, Destroyed, Lost or Stolen Notes), Section 8.04 (Notation on Notes), Section 11.02 (Conversion Procedure; Settlement Upon Conversion) and Section 13.03 (Deposit of Fundamental Change Repurchase Price), and, for the avoidance of doubt, any Interest Instruments issuable hereunder.
Section 2.02 Form of Notes. The Notes shall be substantially in the form set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of these Conditions. To the extent applicable, the Company, by its execution and delivery of these
Conditions, expressly agrees to such terms and provisions and to be bound thereby. To the extent any provision of any Note conflicts with the express provisions of these Conditions, the provisions of these Conditions shall govern and be controlling.
Section 2.03 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.
Section 2.04 Execution and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual (wet ink) signatures of at least half of the members of the Board of Directors of the Company.
Section 2.05 Registration and Voluntary Repurchase of the Notes The Company shall procure that these Conditions are registered with the Swedish Companies Registration Office (the “Registration Event”) as soon as practicably possible following March 23, 2023 (or such later date as may be agreed between the Holders and the Company in writing), and in any event no later than on the thirtieth Business Day following March 14, 2023 (the “Longstop Date”). If the Registration Event has not occurred by the expiry of the Longstop Date, the following shall apply:
Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute and deliver a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company such security and/or indemnity as may be required by the Company to save it harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company evidence to its satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Section 2.08 Cancellation of Notes Paid, Converted, Etc. All Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer or exchange or conversion shall be delivered and surrendered to the Company for cancellation. All Notes delivered to the Company shall be canceled promptly by it, and, except in the case of Notes surrendered for registration of transfer or exchange, no notes shall be executed and delivered in exchange thereof except as expressly permitted by any of the provisions of these Conditions.
Section 2.09 Repurchases. The Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase the Notes in the open market or otherwise, whether by the Company or through its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements. Such Notes shall no longer be considered outstanding under these Conditions upon their repurchase. The Company may also enter into cash-settled swaps or other derivatives with respect to the Notes.
Article IIISATISFACTION AND DISCHARGE
Section 3.01 Satisfaction and Discharge. These Conditions shall cease to be of further effect, and the Company may execute proper instruments acknowledging satisfaction and discharge of these Conditions, when (a) (i) all Notes theretofore executed and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 (Mutilated, Destroyed, Lost or Stolen Notes)) have been delivered to the Company for cancellation, or (ii) the Company has deposited cash in a designated bank account or delivered Ordinary Shares to Holders (solely to satisfy the Company’s Conversion Obligation, if applicable), as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Fundamental Change Repurchase Date, upon Tax Redemption or conversion or otherwise, sufficient to pay all of the outstanding Notes and all other sums due and payable under these Conditions by the Company; and (b) the Company has delivered to each Holder an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of these Conditions have been complied with.
Article IVPARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.
Section 4.02 Maintenance of Office or Agency. The Company will maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Notes and these Conditions may be served. The Company will give prompt written notice to the Holders of the location, and any change in the location, of such office or agency.
Section 4.03 Provisions regarding Payment. The Company shall, on or before each due date of the principal (including the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Holder in writing of any failure to take such action and of any failure to make any payment of the principal (including the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.
Section 4.04 Existence. Subject to Article IX (Consolidation, Merger, Sale, Conveyance and Lease), the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.05 Reporting Obligations. At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, upon written request, so long as any of the Notes or any Ordinary Shares deliverable upon conversion of the Notes, shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to any Holder, beneficial owner or prospective purchaser of such Notes or any Ordinary Shares deliverable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such securities pursuant to Rule 144A. The Company shall take such further action as any Holder or beneficial owner of such Notes may reasonably request to the extent from time to time required to enable such Holder or beneficial owner to sell such Notes in accordance with Rule 144A, as such rule may be amended from time to time.
Section 4.06 Additional Amounts .
Section 4.07 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of these Conditions; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 4.08 Compliance Certificate; Statements as to Defaults. The Company shall deliver to each Holder within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2022) an Officer’s Certificate stating whether the signers thereof have knowledge of any Default or Event of Default by the Company that occurred during the previous year and, if so, specifying each such Default or Event of Default and the nature thereof.
Section 4.09 Negative Covenants .
Article VDEFAULTS AND REMEDIES
Section 5.01 Events of Default. The following events shall be “Events of Default” with respect to the Notes:
Section 5.02 Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 5.01(i) or Section 5.01(j) with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded) may, by notice in writing to the Company, declare up to 100% of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, notwithstanding anything contained in these Conditions or in the Notes to the contrary. If an Event of Default specified in Section 5.01(i) or Section 5.01(j) with respect to the Company or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid interest on, all Notes shall become and shall automatically be immediately due and payable.
Section 5.03 Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 5.01 (Events of Default) shall have occurred, the Company shall, upon demand of the Holders of 25% in aggregate principal amount of the Notes outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded), pay the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate per annum borne by the Notes.
Section 5.04 Remedies Cumulative and Continuing. All powers and remedies given by this Article V to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in these Conditions, and no delay or omission of any Holder of any of the outstanding Notes and U.S. Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein. Every power and remedy given by this Article V or by law to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Holders.
Section 5.05 Direction of Proceedings and Waiver of Defaults by Majority of Holders. Holders of a majority of the aggregate principal amount of the Notes at the time outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Holders; provided, however, that such direction shall not be in conflict with any rule of law or with these Conditions. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded) may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest on, or the principal (including, if applicable, the Tax Redemption Price or Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 5.02 (Acceleration; Rescission and Annulment), (ii) a failure by the Company to pay or deliver, or cause to be delivered, as the case may be, the consideration due upon conversion of the Notes or to comply with Section 11.12 herein, or (iii) a default in respect of a covenant or provision hereof which under Article VIII (Supplemental Conditions) cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 5.05 (Direction of Proceedings and Waiver of Defaults by Majority of Holders), said Default or Event of Default shall for all purposes of the Notes and these Conditions be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 5.06 Notice of Defaults and Events of Default. If a Default or Event of Default occurs and is continuing, the Company shall, within 60 days send to all Holders (at the Company’s expense) as the names and addresses of such Holders appear upon the Note Register, notice of all such Defaults known, unless such Defaults shall have been cured or waived before the giving of such notice.
Section 5.07 Undertaking to Pay Costs. All parties to these Conditions agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under these Conditions, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 5.07 (to the extent permitted by law) shall not apply to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded), or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest on any Note (including, but not limited to, the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article XI (Conversion of Notes).
Article VICONCERNING THE HOLDERS
Section 6.01 Action by Holders. Whenever in these Conditions it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article VII (Holders’ Meetings), or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company solicits the taking of any action by the Holders of the Notes, the Company may, but shall not be required to, in advance of such solicitation, fix a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 6.02 Proof of Execution by Holders. Proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Company or in such manner as shall be satisfactory to the Company. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 7.05 (Voting).
Section 6.03 Who Are Deemed Absolute Owners. The Company and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03 (Date and Denomination of Notes; Payments of Interest and Defaulted Amounts)) accrued and unpaid interest on such Note, for the purpose of conversion of such Note and for all other purposes; and neither the Company nor any Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or Ordinary Shares so paid or delivered, effectual to satisfy and discharge the liability for monies payable or Ordinary Shares deliverable upon any such Note. Notwithstanding anything to the contrary in these Conditions or the Notes following an Event of Default, any Holder of a beneficial interest in a Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any
other action of any other Person, such Holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with these Conditions.
Section 6.04 Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded.
Section 6.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in these Conditions in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Company and upon proof of holding as provided in Section 6.02 (Proof of Execution by Holders), revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
Article VIIHOLDERS’ MEETINGS
Section 7.01 Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article VII for any of the following purposes:
Section 7.02 Call of Meetings by Company or Holders. In case at any time the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Company to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Company shall not have sent the notice of such meeting within 20 calendar days after receipt of such request, then the Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 7.01 (Purpose of Meetings).
Section 7.03 Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of a minimum of $1,000 aggregate principal amount of Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder or Holders of a minimum of $1,000 aggregate principal amount of Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Company and its counsel.
Section 7.04 Regulations. Notwithstanding any other provisions of these Conditions, the Company may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
Section 7.05 Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports of all votes cast at the meeting. A record of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken there at and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and shall be delivered to the Company.
Section 7.06 No Delay of Rights by Meeting. Nothing contained in this Article VII shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any or rights conferred upon or reserved to the Holders under any of the provisions of these Conditions or of the Notes.
Article VIIISUPPLEMENTAL CONDITIONS
Section 8.01 Supplemental Conditions Without Consent of Holders. Subject to any limitations under Swedish law and the rules of the Swedish Companies Registration Office, the Company, when authorized by the resolutions of the Board of Directors, may from time to time and at any time enter into conditions or multiple conditions supplemental hereto for one or more of the following purposes:
Section 8.02 Supplemental Conditions with Consent of Holders. With the consent (evidenced as provided in Article VI (Concerning the Holders)) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article VI (Concerning the Holders) and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors, may from time to time and at any time amend these Conditions or enter into conditions or multiple conditions supplemental hereto for the purpose of adding or changing in any manner or eliminating any of the provisions of these Conditions, the Notes or any supplemental conditions or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of Notes outstanding determined subject to Section 6.04 (Requisite Aggregate Principal Amount; Company-Owned Notes Disregarded), no such supplemental conditions shall:
Section 8.03 Effect of Supplemental Conditions. Upon the execution of any supplemental conditions pursuant to the provisions of this Article VIII, these Conditions shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under these Conditions of the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental conditions shall be and be deemed to be part of these Conditions for any and all purposes.
Section 8.04 Notation on Notes. Notes executed and delivered after the execution of any supplemental conditions pursuant to the provisions of this Article VIII may, at the Company’s expense, bear a notation as to any matter provided for in such supplemental conditions. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of these Conditions contained in any such supplemental conditions may, at the Company’s expense, be executed and delivered by the Company, in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 8.05 Evidence of Compliance of Supplemental Conditions to Be Furnished Holders. The Holders shall receive (i) an Officer’s Certificate and an Opinion of Counsel each stating and as conclusive evidence that any supplemental conditions executed pursuant hereto complies with the requirements of this Article VIII and is permitted or authorized by these Conditions and is not contrary to law and, with respect to such Opinion of Counsel, that such supplemental conditions is the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to customary exceptions, and (ii) proof of registration of amendments to the Note with the Swedish Companies Registration Office.
Section 8.06 Favorable Changes to the U.S. Notes. In case of any amendments to the U.S. Note Documents that are favorable to the interest of such holders of U.S. Notes, the Company undertakes to ensure that the corresponding changes are made to the Notes (to the extent applicable), provided that such amendments are favorable to the interests of the Holders.
Article IXCONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 9.01 Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 9.02 (Successor Corporation to Be Substituted), the Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to another Person other than to one or more of the Wholly Owned Subsidiaries of the Company, unless:
Section 9.02 Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer, lease or disposition and upon the assumption by the Successor Company, by supplemental conditions, executed and delivered to the Holders and reasonably satisfactory in form to the Holders of a majority of the Notes, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes (including, for the avoidance of doubt, any Additional Amounts), the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes (including, for the avoidance of doubt, any Additional Amounts) and the due and punctual performance of all of the covenants and conditions of these Conditions to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor Company thereupon may cause to be executed and delivered, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Holders; and, may, subject to all the terms, conditions and limitations in these Conditions prescribed, cause to be delivered, any Notes that previously shall have been signed by the members of the Board of Directors of the Company. All the Notes so issued shall in all respects have the same legal rank and benefit under these Conditions as the Notes theretofore or thereafter issued in accordance with the terms of these Conditions as though all of such Notes had been issued at the date of
the execution hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or disposition (but not in the case of a lease), upon compliance with this Article IX (Consolidation, Merger, Sale, Conveyance and Lease) the Person named as the “Company” in the first paragraph of these Conditions (or any successor that shall thereafter have become such in the manner prescribed in this Article IX (Consolidation, Merger, Sale, Conveyance and Lease)) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under these Conditions and the Notes.
Article XIMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 10.01 Conditions and Notes Solely constitutes Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in these Conditions or in any supplemental conditions or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of these Conditions and the issue of the Notes.
Article XICONVERSION OF NOTES
Section 11.01 Conversion Privilege. Subject to and upon compliance with the provisions of this Article XI (Conversion of Notes), each Holder shall have the right, at such Holder’s option, to convert all or any portion of the Notes (including Interest Instruments) held by it (if the portion to be converted is in denominations of US$1.00 principal amount and integral multiples of US$1.00 in excess thereof), including interest then accrued and unpaid (for the avoidance of doubt, including any Interest Instruments), at any time during the Conversion Period at the Conversion Rate (subject to, and in accordance with, the settlement provisions of Section 11.02 (Conversion Procedure; Settlement Upon Conversion), the “Conversion Obligation”). The right of a Holder to convert the Notes in accordance with the settlement provisions of Section 11.02 (Conversion Procedure; Settlement Upon Conversion) is called the “Conversion Right”.
Section 11.02 Conversion Procedure; Settlement Upon Conversion.
Section 11.03 Company Conversion Right.
Section 11.04 Adjustment of Conversion Rate. If the number of Ordinary Shares is changed, after the date of these Conditions, for any reason other than one or more of the events described in this Section 11.04, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares upon which conversion of the Notes is based remains the same and make a corresponding inverse adjustment to the Conversion Price. However, the Conversion Price shall never be lower than the quota value of the Company’s Ordinary Shares.
Section 11.05 Adjustments of Prices. Whenever these Conditions requires the Company to calculate the Last Reported Sale Prices for purposes of a Company Conversion, a Fundamental Change or a Tax Redemption over a span of multiple days, the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective pursuant to Section 11.04, or any event requiring an adjustment to the Conversion Rate pursuant to Section 11.04 where the Record Date, effective date or expiration date, as the case may be, of the event occurs, at any time during the period when such Last Reported Sale Prices are to be calculated.
Section 11.06 Ordinary Shares to Be Fully Paid. The Company shall provide Ordinary Shares upon conversion of the Notes. The requisite portion of the principal amount hereunder shall be payment to the Company of the quota value (Sw. kvotvärdet) of such Ordinary Shares and the remainder of the principal amount hereunder shall be unconditionally contributed to the Company.
Section 11.07 Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares.
Section 11.08 Certain Covenants.
Section 11.09 Notice to Holders Prior to Certain Actions.
Section 11.10 Shareholder Rights Plans. To the extent that the Company has a shareholder rights plan in effect upon conversion of the Notes, each of the Conversion Securities delivered upon such conversion shall be entitled to receive (either directly or in respect of the Ordinary Shares underlying such ADSs) the appropriate number of rights under the shareholder rights plan, if any, and the global securities representing the Conversion Securities delivered upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such shareholder rights plan, as the same may be amended from time to time. Notwithstanding the foregoing, if, prior to any conversion, the rights have separated from the Ordinary Shares underlying the ADSs in accordance with the provisions of the applicable shareholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) Distributed Property as provided in Section 11.04(c) (Adjustment of Conversion Rate), subject to readjustment in the event of the expiration, termination or redemption of such rights.
Section 11.11 Amendment Upon Unavailability of ADS Facility. If the Ordinary Shares cease to be represented by American Depositary Shares issued under a depositary receipt program sponsored by the Company: (a) each reference in these Conditions to the ADSs related to the terms of the Notes shall be deemed to have been replaced by a reference to the number of Ordinary Shares and other property, if any, represented by the ADSs on the last day on which the ADSs represented the Ordinary Shares and as if such Ordinary Shares and other property had been distributed to holders of the ADSs on that day and (b) all references to the Last Reported Sale Price of the ADSs shall be deemed to refer to the Last Reported Sale Price of an Ordinary Share, and other appropriate adjustments, including adjustments to the Conversion Rate, will be made to reflect such change. In making such adjustments, where currency translations between U.S. dollars and any other currency are required, the exchange rate in effect on the date of determination (as determined by the Company in good faith) will apply. The Company shall provide written notice to the Holders upon the occurrence of the foregoing.
Section 11.12 ADS Conversion. To the extent not prohibited by applicable laws, the Company will use reasonable efforts to facilitate and (if required) approve or consent to the deposit of any or all of the Ordinary Shares, which the Holders have received by conversion from the Notes, with the ADS Depositary for the issuance of ADSs (free of any restrictive legend) in accordance with the applicable deposit agreement in connection with the Company’s ADS program. Without limiting the generality of the foregoing, to the extent permitted by applicable laws, (i) the Company agrees to execute, deliver and provide such instruments or documents, and carry out any other necessary or appropriate action, as may be reasonably requested or required by the ADS Depositary or any Holder, (ii) the Company agrees to file, or to cause the ADS Depositary to file, a registration statement on Form F-6 which registers under the Securities Act the maximum number of ADSs that may be issued in exchange for Ordinary Shares issued upon conversion of the Notes in accordance with the terms hereof, (iii) the Company agrees to pay all fees
and expenses related to the ADS program in connection with the exchange of a Holder’s Ordinary Shares for ADSs and the deposit of the Holder’s Ordinary Shares with the ADS Depositary in exchange for the issuance of ADSs, (iv) the Company agrees to use reasonable efforts to maintain its ADS program at least until the maturity of the Notes, and (v) the Company agrees to maintain the ratio of Ordinary Shares to ADSs at a ratio of 1:1 (or, if the ratio is changed, seek to amend the Notes in a manner to ensure that the right of holders of Notes to convert into Ordinary Shares is not adversely affected).
Section 11.13 Limitation on Conversions. Any Holder or group of Holders of one or more Notes may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 11.13; provided, however, that no Holder or group of Holders of one or more Notes shall be subject to this Section 11.13 unless he, she or it makes such election. If the election is made by a Holder or group of Holders, the Company shall not effect the conversion of the Holder’s or group’s Notes, and such Holder or group of Holders shall not have the right to convert its Notes to the extent that the number of Ordinary Shares issuable upon such conversion would increase the beneficial ownership of the electing Holder or group of Holders by 4.9% or 9.9% (or such other amount) (the “Percentage”), as the electing Holder or group of Holders may specify, of Ordinary Shares then outstanding. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by a Holder or group of Holders shall include the number of Ordinary Shares held by the Holder or group of Holders but shall exclude Ordinary Shares that would be issuable upon (A) conversion of the Notes beneficially owned by the Holder or group of Holders and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company beneficially owned by the Holder or group of Holders subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 11.13. For purposes of the Notes, in determining the number of issued and outstanding Ordinary Shares outstanding, the Holder may rely on the number of issued and outstanding Ordinary Shares as reflected in (1) the Company’s most recent annual report on Form 20-F or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company setting forth the number of Ordinary Shares issued and outstanding. If the Company receives a Conversion Notice from a Holder or group of Holders at a time when the actual number of outstanding Ordinary Shares is less than the share number reported as being outstanding, the Company shall notify the holder in writing of the number of Ordinary Shares actually outstanding and, to the extent that such Conversion Notice would cause the number of shares to be issued to exceed the Percentage, the holder must notify the Company of a reduced number of Ordinary Shares to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written request of the holder of the Notes, the Company shall, within five (5) Business Days, confirm orally and in writing to such Holder the number of Ordinary Shares then issued and outstanding. By written notice to the Company, the Holder or group of Holders of one or more Notes may from time to time increase or decrease the Percentage applicable to such Holder or group of Holders to any other percentage specified in such notice or opt out of this Section 11.13; provided, however, that any such increase or decrease or opt out shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company. For purposes of clarity, any Ordinary Shares issuable pursuant to the terms of the Note in excess of the Percentage shall not be deemed to be beneficially owned by the applicable Holder or group of Holders for any purpose including for purposes of Section 13(d) of the Exchange Act. To the extent a group of Holders notifies the Company of its intention to opt into this Section 11.13, the group may identify which member or members of the group may convert their Notes into a number of Ordinary Shares which increases the member’s percentage beneficial ownership in an amount equal to less than the Percentage.
Section 11.14 Exchange in Lieu of Conversion.
Article XIIPRINCIPAL; REDEMPTION AT MATURITY
Section 12.01 Principal. Any and all principal amount of the outstanding Notes remaining unpaid, together with all interest accrued but unpaid thereon, automatically and unconditionally shall be due and payable in full in cash on the Maturity Date unless previously converted, exchanged, redeemed, repurchased or otherwise cancelled.
Section 12.02 Redemption at Maturity. Unless previously repurchased, converted or purchased and cancelled as provided herein, the Company shall repurchase all of the Notes from the Holders by paying the Maturity Redemption Price on the Maturity Date. The “Maturity Redemption Price” means an amount equal to the sum of the principal amount of the outstanding Notes on the Maturity Date and the accrued and unpaid interest thereon.
Article XIIIREPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 13.01 Repurchase at Option of Holders Upon a Fundamental Change. If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 13.02 (Withdrawal of Fundamental Change Repurchase Notice) that is in denominations of US$1.00 principal amount and integral multiples of US$1.00 in excess thereof, on the Business Day (the Fundamental Change Repurchase Date”) notified in writing by the Company as set forth in Section 13.01(b) (Repurchase at Option of Holders Upon a Fundamental Change) that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to the greater of (i) 100% of the principal amount thereof, plus any accrued and unpaid interest through the Fundamental Change Repurchase Date, plus the Make-Whole Amount and (ii) an amount in cash equivalent to the amount calculated pursuant to clause (i) divided by the then-prevailing Conversion Price multiplied by the average of the Last Reported Sale Prices of the ADSs over the ten (10) Trading Day period beginning, and including, the Trading Day immediately following the date the Company delivers the related Fundamental Change Company Notice (such greater repurchase price, the “Fundamental Change Repurchase Price”).
Section 13.02 Withdrawal of Fundamental Change Repurchase Notice. A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a duly completed written notice of withdrawal delivered to the Company in accordance with this Section 13.02 (Withdrawal of Fundamental Change Repurchase Notice) at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
Section 13.03 Deposit of Fundamental Change Repurchase Price.
Section 13.04 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company will, if required, comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, so as to permit the rights and obligations under this Article XIII to be exercised in the time and in the manner specified in this Article XIII.
Section 13.05 No Requirement to Conduct an Offer to Repurchase Notes if the Fundamental Change Results in the Notes Becoming Convertible into an Amount of Cash Exceeding the Fundamental Change Repurchase Price. Notwithstanding anything to the contrary in this Article XIII, the Company will not be required to send a Fundamental Change Company Notice pursuant to this Article XIII, or offer to repurchase or repurchase any Notes pursuant to this Article XIII, in connection with a Fundamental Change occurring pursuant to (b)(A) or (b)(B) of the definition thereof or pursuant to (a) of the definition thereof that also constitutes a Fundamental Change occurring pursuant to (b)(A) or (b)(B) of the definition thereof, if (i) such Fundamental Change constitutes a Merger Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible pursuant to Section 11.07 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares) into consideration that consists solely of U.S. dollars in an amount per aggregate principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per aggregate principal amount of Notes (which Fundamental Change Repurchase Price will be calculated assuming that such Fundamental Change Repurchase Price includes the accrued but unpaid interest payable to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change).
Article XIVTAX REDEMPTION
Section 14.01 Tax Redemption.
Section 14.02 Notice of Tax Redemption.
Section 14.03 Payment of Notes Called for Redemption.
Section 14.04 Holders’ Right to Avoid Tax Redemption. Notwithstanding anything to the contrary in this Article XIV, if the Company has given a Tax Redemption Notice as described in Section 14.02 (Notice of Tax Redemption), each Holder of Notes will have the right to elect that such Holder’s Notes will not be subject to Tax Redemption. If a Holder elects not to be subject to a Tax Redemption, the Company will not be required to pay any Additional Amounts (including consideration due in respect of conversion or Fundamental Change Repurchase Price, and whether payable in cash, Conversion Securities or otherwise) with respect to any payment of interest, payment of principal or delivery made in respect of such Holder’s Notes following the Tax Redemption Date solely as a result of the Change in Tax Law that caused such Additional Amounts to be paid after the Tax Redemption Date, and all subsequent payments in respect of such Holder’s Notes will be subject to any tax required to be withheld or deducted under the laws of a Relevant Taxing Jurisdiction, as a result of the Change in Tax Law. The obligation to pay Additional Amounts to any electing Holder for periods up to the Tax Redemption Date shall remain subject to the exceptions set forth under Section 4.06 (Additional Amounts). Where no election is made, the Holder will have its Notes redeemed without any further action. Holders must exercise their option to elect to avoid a Tax Redemption by written notice to the Company no later than the close of business on the fifteenth Business Day immediately preceding the Tax Redemption Date, provided that a Holder that has complied with the requirements set forth in Section 11.02 (Conversion Procedure; Settlement Upon Conversion) will be deemed to have delivered a notice of its election to avoid a Tax Redemption. For the avoidance of doubt, a Tax Redemption shall not affect any Holder’s right to convert any Notes (and the Company’s obligation, if the Conversion Date for such conversion occurs before the applicable Tax Redemption Date, to pay any Additional Amounts in connection with such conversion).
Section 14.05 Restrictions on Tax Redemption. The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms of these Conditions, and such acceleration has not been rescinded, on or prior to the applicable Tax Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Tax Redemption Price with respect to such Notes).
Section 14.06 Withdrawal of Notice of Election to Avoid Tax Redemption. A Holder may withdraw any notice of election to avoid a Tax Redemption (other than such a deemed notice of election) made pursuant to Section 14.04 (Holders’ Rights to Avoid Tax Redemption), by delivering to the Company a written notice of withdrawal prior to the close of business on the second Business Day immediately preceding the Tax Redemption Date (or, if the Company fails to pay the redemption price on the Tax Redemption Date, such later date on which the Company pays the Tax Redemption Price).
Article XVPREEMPTIVE RIGHTS
Section 15.01 Preemptive Rights; General. The Company will not, and will not permit any Subsidiary to, issue or sell any Ordinary Shares, securities convertible into Ordinary Shares or other equity or equity-linked securities (collectively, the “New Securities”) without granting each Initial Holder (if such Initial Holder holds any Notes at such time) the right to purchase, on an as-converted basis (regardless of whether any of such Initial Holder’s Notes have been converted), its Pro Rata Share of any New Securities that the Company may, from time to time, propose to issue or sell (the “Preemptive Rights”). In connection with any issuance of New Securities, each Holder’s “Pro Rata Share” for purposes of this Section 15.01 is the percentage of the Company’s outstanding Ordinary Shares (including any Ordinary Shares represented by ADSs) the Conversion Securities then deliverable to such Initial Holder upon conversion of their Notes then held represent immediately prior to the date of the First Participation Notice in connection with such issuance of New Securities. The Company covenants and agrees not to grant any other Person preemptive rights inconsistent with or more favorable to such Person than the rights granted to the Initial Holders hereunder. The Preemptive Rights shall be subject to (i) the Company’s commercially reasonable efforts to seek approval from the Company’s shareholders for such Preemptive Rights prior to the issuance of any New Securities, and each Initial Holder and each Permitted Holder (to the extent such Initial Holder and Permitted Holders are shareholders in the Company at such time) acknowledges and agrees that it shall vote in favor of such resolutions and (ii) any other limitations under Swedish law, including the board of directors’ fiduciary duties (the “Preemptive Right Conditions”). For the avoidance of doubt, if such Preemptive Rights cannot be provided due to the failure of the Preemptive Right Conditions, any convertible notes, preferred equity or other equity-linked securities issued must be pari passu with or subordinated to the Notes in right of payment and cannot rank senior to the Notes.
Section 15.02 New Securities. For purposes hereof, “New Securities” shall not include:
Section 15.03 Procedures.
Section 15.04 Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event no Holder exercises the Preemptive Rights within 10 Business Days following the issuance of the First Participation Notice, the Company shall have 90 days thereafter to complete the sale of the New Securities described in the First Participation Notice with respect to which the Preemptive Rights hereunder were not exercised at the same or higher price and upon non-price terms not more favorable to the purchasers thereof than specified in the First Participation Notice. In the event that the Company has not issued and sold such New Securities within such 90 days period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Initial Holders pursuant to this Article XV.
Section 15.05 No Assignment of Preemptive Rights. No Holder shall assign all or any of its Preemptive Rights to any person; provided that an Initial Holder may assign its Preemptive Rights to any Affiliate of such Initial Holder only if such Affiliate agrees in writing for the express benefit of the Company (in form and substance reasonably satisfactory to the Company and with a copy thereof to be furnished to the Company) to be bound by these Conditions, including without limitation the Preemptive Right Conditions. If any Initial Holder transfers all or any of its Notes to any person (a “Subsequent Holder”) other than an Affiliate in accordance with the foregoing sentence, such Subsequent Holder shall not be granted any Preemptive Rights under this Article XV.
Section 15.06 No Conversion Rate Adjustment. If a Holder exercises any of its Preemptive Rights pursuant to this Article XV, no Conversion Rate adjustment that would otherwise have been made pursuant to Section 11.04 or otherwise in these Conditions in connection with the sale or issuance of such New Securities will be made in respect of such Holder’s Notes.
Article XVICOVERED DISPOSITIONS
Section 16.01 Use of Net Proceeds of Covered Dispositions.
Section 16.02 Repurchase at Option of Holders Upon a Covered Disposition.
Section 16.03 Withdrawal of Covered Disposition Offer Repurchase Notice. A Covered Disposition Offer Repurchase Notice may be withdrawn (in whole or in part) by means of a duly completed written notice of withdrawal delivered to the Company in accordance with this Section 16.03 (Withdrawal of a Covered Disposition Offer Repurchase Notice) at any time prior to the close of business on the second Business Day immediately preceding the Covered Disposition Offer Repurchase Date, specifying:
Section 16.04 Deposit of Covered Disposition Offer Price.
Article XVIIMISCELLANEOUS PROVISIONS
Section 17.01 Binding on Company’s Successors. All the covenants, stipulations, promises and agreements of the Company contained in these Conditions shall bind its successors and assigns whether so expressed or not.
Section 17.02 Official Acts by Successor Corporation. Any act or proceeding by any provision of these Conditions authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.03 Addresses for Notices, Etc. Any notice or demand that by any provision of these Conditions is required or permitted to be given or served by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being delivered in person, transmitted by facsimile, sent via electronic mail or deposited postage prepaid by registered or certified mail in a post office letter box addressed to:
Section 17.04 Governing Law; Jurisdiction.
Section 17.05 Submission to Jurisdiction; Service of Process. The Company irrevocably appoints Corporation Service Company, with offices at 19 West 44th Street, Suite 200, New York, NY 10036 as its authorized agent in the City of New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to:
Section 17.06 Language versions . These Conditions have been drafted and executed in English and translated into Swedish only for the purpose of filing a registration application with the Swedish Companies Registration Office. In case of any discrepancies between the two language versions, the English version shall prevail.
Section 17.07 Legal Holidays. In any case where any Interest Payment Date, Fundamental Change Repurchase Date, Conversion Date, Tax Redemption Date, Covered Disposition Offer Repurchase Date or Maturity Date is not a Business Day, then such Interest Payment Date, Fundamental Change Repurchase Date, Conversion Date, Tax Redemption Date, Covered Disposition Offer Repurchase Date or Maturity Date, as applicable, will not be postponed but any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue or be paid in respect of the delay. For purposes of the foregoing sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a Business Day.
Section 17.08 No Security Interest Created. Nothing in these Conditions or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.09 Benefits of Conditions. Nothing in these Conditions or in the Notes, expressed or implied, shall give to any Person, other than the Holders, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under these Conditions.
Section 17.10 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of these Conditions have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.11 Execution in Counterparts. These Conditions 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. The exchange of copies of these Conditions and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of these Conditions as to the parties hereto and may be used in lieu of the original Conditions for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of these Conditions as to the other parties hereto and shall be deemed to be their original signatures for all purposes.
Section 17.12 Severability. In the event any provision of these Conditions or in the Notes 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 17.13 Calculations.
Section 17.14 USA Patriot Act. The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to these Conditions agree that they will provide to the Company such information as it may request, from time to time, in order for the Company to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
Section 17.15 Withholding Taxes. Subject in all respects to the provisions of Section 4.06 (Additional Amounts), any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase, redemption or maturity of the Notes. In addition, but subject in all respects to the provisions of Section 4.06 (Additional Amounts), if any withholding taxes (including backup withholding) are paid on behalf of a Holder or beneficial owner of Notes, then those withholding taxes may be withheld from or set off against payments of cash or the delivery of Ordinary Shares, in respect of the Notes (or, in some circumstances, any payments on the Ordinary Shares or sales proceeds received by or other funds or assets of the Holder or beneficial owner without duplication of any amounts already withheld or set off).
Section 17.16 No Personal Liability of Incorporators, Shareholders, Employees, Agents, Officers, Directors or Subsidiaries. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in these Conditions or in any supplemental conditions thereto or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent, officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor entity, either directly or through the Company or any successor entity, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise. Each Holder, by accepting the Notes waives and releases all such liability. The waiver and release are a condition of, and part of the consideration, the execution of these Conditions and the issuance of the Notes.
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