EX-10.3 6 stjude071784_ex10-3.htm CONFIRMATION OF OTC WARRANT TRANSACTION Exhibit 10.3 to St. Jude Medical, Inc. Form 8-K dated April 19, 2007

Exhibit 10.3

 

 

 

 

 

April 19, 2007

 

 

 

To:

 

St. Jude Medical, Inc.

 

 

One Lillehei Plaza

 

 

St. Paul, Minnesota 55117

 

 

Attn: Corporate Secretary

 

 

Telephone: 651-483-2000

 

 

Facsimile: 651-481-7690

 

 

 

From:

 

Bank of America, N.A.

 

 

c/o Banc of America Securities LLC

 

 

9 West 57th Street

 

 

New York, NY 10019

 

 

Attn: John Servidio

 

 

Telephone: 212-847-6527

 

 

Facsimile: 212-230-8610

 

 

 

Re:

 

Issuer Warrant Transaction

 

 

(Transaction Reference Number: NY-28866)

Ladies and Gentlemen:

          The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “Transaction”) between Bank of America, N.A. (“BofA”) and St. Jude Medical, Inc. (“Issuer”). This communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

          1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000 ISDA Definitions (including the Annex thereto) (the “2000 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2000 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. For purposes of the Equity Definitions, each reference herein to a Warrant shall be deemed to be a reference to a Call Option or an Option, as context requires.

          This Confirmation evidences a complete and binding agreement between BofA and Issuer as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement (the “ISDA Form”) as if BofA and Issuer had executed an agreement in such form (without any Schedule but with the elections set forth in this Confirmation). For the avoidance of doubt, the Transaction shall be the only transaction under the Agreement.

          All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.

          2. The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Trade Date:

 

April 19, 2007

 

 

 

 

 

 

 

Effective Date:

 

April 25, 2007, subject to Section 8(n) below

 

 

 

 

 

 

 

 

 

Components:

 

The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.

 

 

 

 

 

 

 

Warrant Style:

 

European

 

 

 

 

 

 

 

Warrant Type:

 

Call

 

 

 

 

 

 

 

Seller:

 

Issuer

 

 

 

 

 

 

 

Buyer:

 

BofA

 

 

 

 

 

 

 

Shares:

 

The Common Stock of Issuer, par value USD 0.10 per share (Ticker Symbol: “STJ”).

 

 

 

 

 

 

 

 

 

Number of Warrants:

 

For each Component, as provided in Annex A to this Confirmation.

 

 

 

 

 

 

 

Warrant Entitlement:

 

One Share per Warrant

 

 

 

 

 

 

 

Strike Price:

 

USD60.7320

 

 

 

 

 

 

 

Premium:

 

USD35,040,000.00

 

 

 

 

 

 

 

Premium Payment Date:

 

The Effective Date

 

 

 

 

 

 

 

Exchange:

 

New York Stock Exchange

 

 

 

 

 

 

 

Related Exchange:

 

All Exchanges

 

 

 

 

 

Procedures for Exercise:

 

 

 

 

 

 

 

Expiration Time:

 

Valuation Time

 

 

 

 

 

 

 

Expiration Date:

 

As provided in Annex A to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component); provided that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and provided further that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is an Expiration Date occurring on the Final Disruption Date in respect of any other Component for the Transaction) and, notwithstanding anything to the contrary in this Confirmation or the Definitions, the Relevant Price for the Expiration Date shall be the prevailing market value per Share determined by the Calculation Agent in a commercially reasonable manner. “Final Disruption Date” means June 24, 2009. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the number of Warrants for the relevant Component for which such day shall be the Expiration Date and shall designate the Scheduled Trading Day determined in the

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manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.

 

 

 

 

 

 

 

Market Disruption Event:

 

Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof.

 

 

 

 

 

 

 

Automatic Exercise:

 

Applicable; and means that each Warrant not previously exercised under the Transaction will be deemed to be automatically exercised at the Expiration Time on the Expiration Date unless BofA notifies Seller (by telephone or in writing) prior to the Expiration Time on the Expiration Date that it does not wish Automatic Exercise to occur, in which case Automatic Exercise will not apply.

 

 

 

 

 

 

 

Issuer’s Telephone Number

 

 

 

 

and Telex and/or Facsimile Number

 

 

 

 

and Contact Details for purpose of

 

 

 

 

Giving Notice:

 

To be provided by Issuer.

 

 

 

 

 

Settlement Terms:

 

 

 

 

 

 

In respect of any Component:

 

 

 

 

 

 

 

 

Settlement Currency:

 

USD

 

 

 

 

 

 

 

Net Share Settlement:

 

On each Settlement Date, Issuer shall deliver to BofA a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date to the account specified by BofA and cash in lieu of any fractional Shares valued at the Relevant Price on the Valuation Date corresponding to such Settlement Date.

 

 

 

 

 

 

 

Number of Shares to be Delivered:

 

In respect of any Exercise Date, subject to the last sentence of Section 9.5 of the Equity Definitions, the product of (i) the number of Warrants exercised or deemed exercised on such Exercise Date, (ii) the Warrant Entitlement and (iii) (A) the excess of the VWAP Price on the Valuation Date occurring on such Exercise Date over the Strike Price divided by (B) such VWAP Price.

 

 

 

 

 

 

 

 

 

The Number of Shares to be Delivered shall be delivered by Issuer to BofA no later than 12 noon (local time in New York City) on the relevant Settlement Date.

 

 

 

 

 

 

 

VWAP Price:

 

For any Valuation Date, the Rule 10b-18 dollar volume weighted average price per Share for such Valuation Date based on transactions executed during such Valuation Date, as reported on Bloomberg Page “STJ.N <Equity> AQR SEC” (or any successor thereto) or, in the event such price is not so reported on such Valuation Date for any reason, as reasonably determined by the Calculation Agent.

 

 

 

 

 

 

 

Other Applicable Provisions:

 

The provisions of Sections 9.1(c), 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Seller is the Issuer of the Shares) and 9.12 of

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the Equity Definitions will be applicable, except that all references in such provisions to “Physically-Settled” shall be read as references to “Net Share Settled”. “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to such Warrant.

 

 

 

Adjustments:

 

 

 

 

 

 

In respect of any Component:

 

 

 

 

 

 

 

 

Method of Adjustment:

 

Calculation Agent Adjustment

 

 

 

 

 

 

 

Extraordinary Dividend:

 

Any dividend or distribution (i) that has an ex-dividend date occurring on or after the Trade Date and on or prior to the Expiration Date and (ii) the amount or value of which exceeds the Ordinary Dividend Amount for such dividend or distribution, as determined by the Calculation Agent.

 

 

 

 

 

 

 

Ordinary Dividend Amount:

 

USD 0.00.

 

 

 

 

 

Extraordinary Events:

 

 

 

 

 

 

 

Consequences of Merger Events:

 

 

 

 

 

 

 

 

 

 

(a) Share-for-Share:

 

Modified Calculation Agent Adjustment

 

 

 

 

 

 

 

 

 

(b) Share-for-Other:

 

Cancellation and Payment (Calculation Agent Determination)

 

 

 

 

 

 

 

 

 

(c) Share-for-Combined:

 

Cancellation and Payment (Calculation Agent Determination)

 

 

 

 

 

 

 

 

Tender Offer:

 

Applicable

 

 

 

 

 

 

 

Consequences of Tender Offers:

 

 

 

 

 

 

 

 

 

 

(a) Share-for-Share:

 

Modified Calculation Agent Adjustment

 

 

 

 

 

 

 

 

 

 

(b) Share-for-Other:

 

Cancellation and Payment (Calculation Agent Determination) on that portion of the Other Consideration that consists of cash; Modified Calculation Agent Adjustment on the remainder of the Other Consideration.

 

 

 

 

 

 

 

 

 

 

(c) Share-for-Combined:

 

Modified Calculation Agent Adjustment

 

 

 

 

 

 

 

 

 

Nationalization, Insolvency

 

 

 

 

or Delisting:

 

Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange or The NASDAQ National Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.

 

 

 

 

 

 

 

Additional Disruption Events:

 

 

 

 

 

 

 

 

 

 

(a)

Change in Law:

 

Applicable, provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by inserting ”on the advice of counsel” after the words “good faith” and by deleting subclause (Y) of such Section.

 

 

 

 

 

 

 

 

 

 

(b)

Failure to Deliver:

 

Applicable

 

 

 

 

 

 

 

 

 

 

(c)

Insolvency Filing:

 

Applicable

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(d)

Hedging Disruption:

 

Applicable

 

 

 

 

 

 

 

 

 

 

(e)

Increased Cost of Hedging:

 

Not Applicable

 

 

 

 

 

 

 

 

 

 

(f)

Loss of Stock Borrow:

 

Applicable

 

 

 

 

 

 

 

 

 

 

 

Maximum Stock Loan Rate:

 

200 bps

 

 

 

 

 

 

 

 

 

 

(g)

Increased Cost of Stock Borrow:

 

Applicable

 

 

 

 

 

 

 

 

 

 

 

Initial Stock Loan Rate:

 

50 bps

 

 

 

 

 

 

 

 

 

 

Hedging Party:

 

BofA for all applicable Additional Disruption Events

 

 

 

 

 

 

 

 

 

Determining Party:

 

BofA for all applicable Extraordinary Events

 

 

 

 

 

 

 

 

Non-Reliance:

 

Applicable

 

 

 

 

 

 

 

Agreements and Acknowledgments

 

 

 

 

Regarding Hedging Activities:

 

Applicable

 

 

 

 

 

 

 

Additional Acknowledgments:

 

Applicable

 

 

 

 

 

 

 

3.

Calculation Agent:

 

BofA

 

 

 

 

 

 

 

 

4.

Account Details:

 

 

 

 

 

 

 

 

 

 

 

BofA Payment Instructions:

 

Provided by Bank of America

 

 

 

 

Issuer Payment Instructions:

 

To be provided by Issuer.

 

 

 

 

 

 

 

 

5.

Offices:

 

 

 

 

 

 

 

 

 

 

 

The Office of BofA for the Transaction is: New York

 

 

 

 

Bank of America, N.A.

 

c/o Banc of America Securities LLC

 

9 West 57th Street, 40th Floor

 

New York, NY 10019

 

Attention:

John Servidio

 

Telephone:

212-847-6527

 

Facsimile:

212-230-8610

 

 

 

 

 

 

The Office of Issuer for the Transaction is: Not applicable

 

 

 

 

 

 

6.

Notices: For purposes of this Confirmation:

 

 

 

 

 

 

(a)

Address for notices or communications to Issuer:

 

 

 

 

To:

St. Jude Medical, Inc.

 

 

One Lillehei Plaza

 

 

St. Paul, Minnesota 55117

 

Attn:

Corporate Secretary

 

Telephone:

651-483-2000

 

Facsimile:

651-481-7690


 

 

 

 

 

 

(b)

Address for notices or communications to BofA:

 

 

 

 

To:

Bank of America, N.A.

 

 

c/o Banc of America Securities LLC

 

 

9 West 57th Street, 40th Floor

 

 

New York, NY 10019

 

Attn:

John Servidio

 

Telephone:

212-847-6527

 

Facsimile:

212-230-8610

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          7. Representations, Warranties and Agreements:

          (a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Issuer represents and warrants to and for the benefit of, and agrees with, BofA as follows:

 

 

 

          (i) On the Trade Date, (A) none of Issuer and its officers and directors is aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and other documents filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

 

 

 

          (ii) Without limiting the generality of Section 13.1 of the Equity Definitions, Issuer acknowledges that BofA is not making any representations or warranties with respect to the treatment of the Transaction under FASB Statements 133, as amended, or 150, EITF Issue No. 00-19 (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

 

 

 

          (iii) Prior to the Trade Date, Issuer shall deliver to BofA a resolution of Issuer’s board of directors authorizing the Transaction and such other certificate or certificates as BofA shall reasonably request.

 

 

 

          (iv) Issuer is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.

 

 

 

          (v) On any Expiration Date, Issuer shall not, and shall cause its affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares on any Expiration Date.

 

 

 

          (vi) Issuer is not, and after giving effect to the transactions contemplated hereby will not be, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

 

 

          (vii) On the Trade Date (A) the assets of Issuer at their fair valuation exceed the liabilities of Issuer, including contingent liabilities, (B) the capital of Issuer is adequate to conduct the business of Issuer and (C) Issuer has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature.

 

 

 

          (viii) Issuer shall not take any action to decrease the number of Available Shares below the Capped Number (each as defined below).

 

 

 

          (ix) The representations and warranties of Issuer set forth in Section 3 of the Agreement and Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of April 19, 2007 between Issuer and BofA are true and correct and are hereby deemed to be repeated to BofA as if set forth herein.

 

 

 

          (x) Issuer understands no obligations of BofA to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of BofA or any governmental agency.

 

 

          (b) Each of BofA and Issuer agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.

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          (c) Each of BofA and Issuer acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, BofA represents and warrants to Issuer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account without a view to the distribution or resale thereof and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws.

          (d) Each of BofA and Issuer agrees and acknowledges that BofA is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the United States Code (the “Bankruptcy Code”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “settlement payment,” as such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that BofA is entitled to the protections afforded by, among other sections, Section 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code.

          (e) Issuer shall deliver to BofA an opinion of counsel, dated as of the Trade Date and reasonably acceptable to BofA in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement.

          8. Other Provisions:

          (a) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If, subject to Section 8(l) below, Issuer shall owe BofA any amount pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions (except in the event of an Insolvency, a Nationalization, a Tender Offer or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash) or pursuant to Section 6(d)(ii) of the Agreement (except in the event of an Event of Default in which Issuer is the Defaulting Party or a Termination Event in which Issuer is the Affected Party, that resulted from an event or events within Issuer’s control) (a “Payment Obligation”), Issuer shall have the right, in its sole discretion, to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to BofA, confirmed in writing within one Scheduled Trading Day, between the hours of 9:00 A.M. and 4:00 P.M. New York City time on the Merger Date, Tender Offer Date, Announcement Date or Early Termination Date, as applicable (“Notice of Share Termination”). Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the Merger Date, the Tender Offer Date, Announcement Date or Early Termination Date, as applicable:

 

 

 

Share Termination Alternative:

 

Applicable and means that Issuer shall deliver to BofA the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable (the “Share Termination Payment Date”), in satisfaction of the Payment Obligation.

 

 

 

Share Termination Delivery

 

 

Property:

 

A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.

 

 

 

Share Termination Unit Price:

 

The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Issuer at the time of notification of the Payment Obligation.

 

 

 

Share Termination Delivery Unit:

 

In the case of a Termination Event, Event of Default or Delisting, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, a unit

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consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer. If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.

 

 

 

Failure to Deliver:

 

Applicable

 

 

 

Other applicable provisions:

 

If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Seller is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-Settled” shall be read as references to “settled by Share Termination Alternative” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”.

          (b) Registration/Private Placement Procedures. (i) If, in the reasonable judgment of BofA, for any reason, any Shares or any securities of Issuer or its affiliates comprising any Share Termination Delivery Units deliverable to BofA hereunder (any such Shares or securities, “Delivered Securities”) would not be immediately freely transferable by BofA under Rule 144(k) under the Securities Act of 1933, as amended (the “Securities Act”) (other than as a result of BofA being an affiliate, as such term is used in the Securities Act and the rules and regulations thereunder, of Issuer), then the provisions set forth in this Section 8(b) shall apply. At the election of Issuer by notice to BofA within one Exchange Business Day after the relevant delivery obligation arises, but in any event at least one Exchange Business Day prior to the date on which such delivery obligation is due, either (A) all Delivered Securities delivered by Issuer to BofA shall be, at the time of such delivery, covered by an effective registration statement of Issuer for immediate resale by BofA (such registration statement and the corresponding prospectus (the “Prospectus”) (including, without limitation, any sections describing the plan of distribution) in form and content commercially reasonably satisfactory to BofA) or (B) Issuer shall deliver additional Delivered Securities so that the value of such Delivered Securities, as determined by the Calculation Agent to reflect an appropriate liquidity discount, equals the value of the number of Delivered Securities that would otherwise be deliverable if such Delivered Securities were freely tradeable (without prospectus delivery) upon receipt by BofA (such value, the “Freely Tradeable Value”); provided that Issuer may not make the election described in this clause (B) if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the delivery by Issuer to BofA (or any affiliate designated by BofA) of the Delivered Securities or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Delivered Securities by BofA (or any such affiliate of BofA). (For the avoidance of doubt, as used in this paragraph (b) only, the term “Issuer” shall mean the issuer of the relevant securities, as the context shall require.)

 

 

 

(ii) If Issuer makes the election described in clause (b)(i)(A) above:

 

 

 

          (A) BofA (or an Affiliate of BofA designated by BofA) shall be afforded a reasonable opportunity to conduct a due diligence investigation with respect to Issuer that is customary in scope for underwritten offerings of equity securities and that yields results that are commercially reasonably satisfactory to BofA or such Affiliate, as the case may be, in its discretion; and

 

 

 

          (B) BofA (or an Affiliate of BofA designated by BofA) and Issuer shall enter into an agreement (a “Registration Agreement”) on commercially reasonable terms in connection with the public resale of such Delivered Securities by BofA or such Affiliate substantially similar to underwriting agreements customary for underwritten offerings of equity securities, in form and substance commercially reasonably satisfactory to BofA or such Affiliate and Issuer, which Registration Agreement shall include, without limitation, provisions substantially similar to those contained in such underwriting agreements relating to the indemnification of, and contribution in connection with the liability of, BofA and its Affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale, including all registration costs and all fees and expenses of counsel for BofA, and shall provide for the delivery of accountants’ “comfort letters” to BofA or

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such Affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus.

 

 

 

(iii) If Issuer makes the election described in clause (b)(i)(B) above:

 

 

 

          (A) all Delivered Securities shall be delivered to BofA (or any Affiliate of BofA designated by BofA) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof;

 

 

 

          (B) BofA (or an Affiliate of BofA designated by BofA) and any potential institutional purchaser of any such Delivered Securities from BofA or such Affiliate identified by BofA shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation in compliance with applicable law with respect to Issuer customary in scope for private placements of equity securities (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them);

 

 

 

          (C) BofA (or an Affiliate of BofA designated by BofA) and Issuer shall enter into an agreement (a “Private Placement Agreement”) on commercially reasonable terms in connection with the private placement of such Delivered Securities by Issuer to BofA or such Affiliate and the private resale of such Delivered Securities by BofA or such Affiliate, substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to BofA and Issuer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, BofA and its Affiliates and Issuer, shall provide for the payment by Issuer of all expenses in connection with such resale, including all fees and expenses of counsel for BofA, shall contain representations, warranties and agreements of Issuer reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales, and shall use best efforts to provide for the delivery of accountants’ “comfort letters” to BofA or such Affiliate with respect to the financial statements and certain financial information contained in or incorporated by reference into the offering memorandum prepared for the resale of such Shares; and

 

 

 

          (D) Issuer agrees that any Delivered Securities so delivered to BofA, (i) may be transferred by and among BofA and its Affiliates, and Issuer shall effect such transfer without any further action by BofA and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed with respect to such Delivered Securities, Issuer shall promptly remove, or cause the transfer agent for such Shares or securities to remove, any legends referring to any such restrictions or requirements from such Delivered Securities upon delivery by BofA (or such Affiliate of BofA) to Issuer or such transfer agent of seller’s and broker’s representation letters customarily delivered by BofA in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by BofA (or such affiliate of BofA).

          (c) Make-whole. If Issuer makes the election described in clause (b)(i)(B) of paragraph (b) of this Section 8, then BofA or its affiliate may sell such Shares or Share Termination Delivery Units, as the case may be, during a period (the “Resale Period”) commencing on the Exchange Business Day following delivery of such Shares or Share Termination Delivery Units, as the case may be, and ending on the Exchange Business Day on which BofA completes the sale of all such Shares or Share Termination Delivery Units, as the case may be, or a sufficient number of Shares or Share Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales exceed the Freely Tradeable Value (such amount of the Freely Tradeable Value, the “Required Proceeds”). If any of such delivered Shares or Share Termination Delivery Units remain after such realized net proceeds exceed the Required Proceeds, BofA shall return such remaining Shares or Share Termination Delivery Units to Issuer. If the Required Proceeds exceed the realized net proceeds from such resale, Issuer shall transfer to BofA by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately following the last day of the Resale Period the amount of such excess (the “Additional Amount”) in cash or in a number of additional Shares (“Make-whole Shares”) in an amount that, based on the Relevant Price on the last day of the Resale Period (as if such day was the “Valuation Date” for purposes of computing such Relevant Price), has a dollar value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares in the manner contemplated by this Section 8(c). This provision shall be applied successively until the Additional Amount is equal to zero, subject to Section 8(e).

9

          (d) Beneficial Ownership. Notwithstanding anything to the contrary in the Agreement or this Confirmation, in no event shall BofA be entitled to receive, or shall be deemed to receive, any Shares if, upon such receipt of such Shares, the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by BofA or any entity that directly or indirectly controls BofA (collectively, “Buyer Group”) would be equal to or greater than 9% or more of the outstanding Shares. If any delivery owed to BofA hereunder is not made, in whole or in part, as a result of this provision, Issuer’s obligation to make such delivery shall not be extinguished and Issuer shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, BofA gives notice to Issuer that such delivery would not result in Buyer Group directly or indirectly so beneficially owning in excess of 9% of the outstanding Shares.

          (e) Limitations on Settlement by Issuer. Notwithstanding anything herein or in the Agreement to the contrary, in no event shall Issuer be required to deliver Shares in connection with the Transaction in excess of 46,104,240 Shares (the “Capped Number”). Issuer represents and warrants (which shall be deemed to be repeated on each day that the Transaction is outstanding) that the Capped Number is equal to or less than the number of authorized but unissued Shares of the Issuer that are not reserved for future issuance in connection with transactions in the Shares (other than the Transaction) on the date of the determination of the Capped Number (such Shares, the “Available Shares”). In the event Issuer shall not have delivered the full number of Shares otherwise deliverable as a result of this Section 8(e) (the resulting deficit, the “Deficit Shares”), Issuer shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Issuer or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved and (iii) Issuer additionally authorizes and unissued Shares that are not reserved for other transactions. Issuer shall immediately notify BofA of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter.

          (f) Right to Extend. BofA may postpone any Exercise Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Number of Shares to be Delivered with respect to one or more Components), if BofA determines, in its reasonable discretion, that such extension is reasonably necessary or appropriate to preserve BofA’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable BofA to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if BofA were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to BofA.

          (g) Equity Rights. BofA acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Issuer’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Issuer’s bankruptcy to any claim arising as a result of a breach by Issuer of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Issuer herein under or pursuant to any other agreement.

          (h) Amendments to Equity Definitions and the Agreement. The following amendments shall be made to the Equity Definitions and to the Agreement:

 

 

 

          (i) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares or options on the Shares and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and, the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”;

10

 

 

 

          (ii) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative” and replacing them with “material”;

 

 

 

          (iii) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) at BofA’s option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”.

          (i) Transfer and Assignment. BofA may transfer or assign its rights and obligations hereunder and under the Agreement, in whole or in part, in a transaction meeting the requirements of Rule 144A under the Securities Act without the consent of Issuer (i) to any Affiliate of BofA or (ii) to any “qualified institutional buyer” as such term is defined in Rule 144A(a) under the Securities Act; provided that if the transferee or assignee is any person other than a major financial institution that in the normal course of its business, acts as a dealer in over-the-counter derivatives transactions, then BofA shall continue to serve as Calculation Agent. Any other transfer or assignment of BofA’s rights and obligations hereunder or under the Agreement shall require the consent of Issuer, which consent shall not be unreasonably withheld.

          (j) Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Issuer and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Issuer relating to such tax treatment and tax structure.

          (k) Designation by BofA. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing BofA to purchase, sell, receive or deliver any Shares or other securities to or from Issuer, BofA may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform BofA obligations in respect of the Transaction and any such designee may assume such obligations. BofA shall be discharged of its obligations to Issuer to the extent of any such performance.

          (l) Netting and Set-off.

 

 

 

          (i) If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by Issuer to BofA and cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or pursuant to any other agreement between the parties by BofA to Issuer and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

 

 

 

          (ii) In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, BofA shall have the right to terminate, liquidate and otherwise close out the Transaction and to set off any obligation or right that BofA or any affiliate of BofA may have to or against Issuer hereunder or under the Agreement against any right or obligation BofA or any of its affiliates may have against or to Issuer, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement or hereunder. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in

11

 

 

 

which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

 

 

 

          (iii) Notwithstanding any provision of the Agreement (including without limitation Section 6(f) thereof) and this Confirmation (including without limitation this Section 8(l)) or any other agreement between the parties to the contrary, (A) Issuer shall not net or set off its obligations under the Transaction against its rights against BofA under any other transaction or instrument; (B) BofA may net and set off any rights of BofA against Issuer arising under the Transaction only against obligations of BofA to Issuer arising under any transaction or instrument if such transaction or instrument does not convey rights to BofA senior to the claims of common stockholders in the event of Issuer’s bankruptcy; and (C) in the event of Issuer’s bankruptcy, BofA waives any and all rights it may have to set-off in respect of the Transaction, whether arising under agreement, applicable law or otherwise. BofA will give notice to Issuer of any netting or set off effected under this provision.

          (m) Additional Termination Event. If BofA reasonably determines that it is advisable to terminate a portion of the Transaction so that BofA’s related hedging activities will comply with applicable securities laws, rules or regulations, an Additional Termination Event shall occur in respect of which (1) Issuer shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction.

          (n) Effectiveness. If, prior to the Effective Date, BofA reasonably determines that it is advisable to cancel the Transaction because of concerns that BofA’s related hedging activities could be viewed as not complying with applicable securities laws, rules or regulations, the Transaction shall be cancelled and shall not become effective, and neither party shall have any obligation to the other party in respect of the Transaction.

          (o) Waiver of Trial by Jury. EACH OF ISSUER AND BUYER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF BUYER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

          (p) Governing Law. THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.

12

          Issuer hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by BofA) correctly sets forth the terms of the agreement between BofA and Issuer with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to John Servidio, Facsimile No. 212-230-8610.

 

 

 

 

 

 

Yours faithfully,

 

 

 

 

 

BANK OF AMERICA, N.A.

 

 

 

 

 

By:

/s/ Christopher Hutmaker

 

 

 

 

 

 

Name: Christopher Hutmaker

 

 

 

Title: Principal

 

 

 

Agreed and Accepted By:

 

 

 

 

 

ST. JUDE MEDICAL, INC.

 

 

 

 

 

By:

/s/ John C. Heinmiller

 

 

 

 

 

 

Name: John C. Heinmiller

 

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

13

Annex A

For each Component of the Transaction, the Number of Warrants and Expiration Date is set forth below.

 

 

 

 

 

 

 

Component Number

 

Number of Warrants

 

Expiration Date

 

 

 

 

1.

 

576,303.00

 

April 15, 2009

 

2.

 

576,303.00

 

April 16, 2009

 

3.

 

576,303.00

 

April 17, 2009

 

4.

 

576,303.00

 

April 20, 2009

 

5.

 

576,303.00

 

April 21, 2009

 

6.

 

576,303.00

 

April 22, 2009

 

7.

 

576,303.00

 

April 23, 2009

 

8.

 

576,303.00

 

April 24, 2009

 

9.

 

576,303.00

 

April 27, 2009

 

10.

 

576,303.00

 

April 28, 2009

 

11

 

576,303.00

 

April 29, 2009

 

12

 

576,303.00

 

April 30, 2009

 

13

 

576,303.00

 

May 1, 2009

 

14

 

576,303.00

 

May 4, 2009

 

15

 

576,303.00

 

May 5, 2009

 

16

 

576,303.00

 

May 6, 2009

 

17

 

576,303.00

 

May 7, 2009

 

18

 

576,303.00

 

May 8, 2009

 

19

 

576,303.00

 

May 11, 2009

 

20

 

576,303.00

 

May 12, 2009

 

21

 

576,303.00

 

May 13, 2009

 

22

 

576,303.00

 

May 14, 2009

 

23

 

576,303.00

 

May 15, 2009

 

24

 

576,303.00

 

May 18, 2009

 

25

 

576,303.00

 

May 19, 2009

 

26

 

576,303.00

 

May 20, 2009

 

27

 

576,303.00

 

May 21, 2009

 

28

 

576,303.00

 

May 22, 2009

 

29

 

576,303.00

 

May 26, 2009

 

30

 

576,303.00

 

May 27, 2009

 

31

 

576,303.00

 

May 28, 2009

 

32

 

576,303.00

 

May 29, 2009

 

33

 

576,303.00

 

June 1, 2009

 

34

 

576,303.00

 

June 2, 2009

 

35

 

576,303.00

 

June 3, 2009

 

36

 

576,303.00

 

June 4, 2009

 

37

 

576,303.00

 

June 5, 2009

 

38

 

576,303.00

 

June 8, 2009

 

39

 

576,303.00

 

June 9, 2009

 

40

 

576,303.00

 

June 10, 2009

14