Exhibit 4.13
THIS INSTRUMENT is made by way of deed on 6 June 2006
BY:
PROTHERICS PLC (No.02459087) whose registered office is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "COMPANY")
WHEREAS the Company has, pursuant to its Memorandum and Articles of Association
and by resolution of its board of directors created and authorised the issue of
a maximum nominal amount of E1,050,000 Unsecured Convertible Loan Notes 2026 to
be constituted as hereinafter provided and subject to, and with the benefit of,
the schedules hereto which shall be deemed to form part of this instrument.
BY THIS DEED THE COMPANY DECLARES AND COVENANTS AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this instrument and the schedules the following words and expressions
shall have the following meanings, unless the context otherwise requires:
"BUSINESS DAY" means a day (excluding Saturdays) on which banks generally
are open In London for the transaction of normal banking business;
"CONDITIONS" means the conditions of the Notes as set out in schedule 2;
"DIRECTORS" means the board of directors for the time being of the
Company;
"NORTH AMERICAN PERSON" means:
(a) any individual who is a resident or individual of the United States;
(b) a corporation, partnership or other entity created or organised in
or under the laws of the United States or any state thereof or an
estate or trust the income of which is subject to United States
federal income taxation regardless of its source; and
(c) any individual, corporation, partnership, trust or other entity
resident In Canada,
provided that the term "NORTH AMERICAN PERSON" shall not include A branch
or agency of a United States bank or insurance company that is operating
outside the United States for valid business reasons as a locally
registered branch or agency engaged in the banking and insurance business
and not solely for the purpose of investing in securities not registered
under the United States Securities Act of 1933, as amended;
"NOTES" means the E1,050,000 Unsecured Convertible Loan Notes 2006
constituted by this instrument or, as the case may be, the principal
amounts represented by them and for the time being issued and outstanding;
"NOTEHOLDER" means a person whose name is entered in the Register as the
holder of a Note;
"ORDINARY SHARES" means ordinary shares of 2p each in the capital of the
Company or any other ordinary shares of the Company into which such shares
may be consolidated, sub-divided or converted and "ORDINARY SHARE CAPITAL"
shall be interpreted accordingly;
"REGISTER" means the register of holders of the Notes kept by or on behalf
of the Company; and
"UNITED STATES" means the United States of America.
1
1.2 Subject as herein expressly defined any words and expressions defined in
the Companies ▇▇▇ ▇▇▇▇ and the Companies ▇▇▇ ▇▇▇▇ shall have the meanings
therein ascribed to them.
1.3 References to this "INSTRUMENT" or this "DEED" include, where the context
so admits, the schedules hereto.
2. AMOUNT OF THE NOTES
2.1 The aggregate nominal amount of the Notes constituted by this instrument
is limited to E1,050,000.
2.2 The Notes will be issued in registered form in denominations of E1 in
nominal amount or integral multiples thereof.
3. STATUS OF THE NOTES
3.1 The Notes represent a direct and unsecured obligation of the Company for
the due and punctual payment of the principal in respect of them and for
the performance of all the obligations of the Company with respect to
them.
3.2 The Notes when issued will rank pari passu equally and rateably without
discrimination or preference as unsecured obligations of the Company and
with all other unsecured indebtedness of the Company except to the extent
provided by law.
3.3 The Notes shall be known as E1,050,000 Unsecured Convertible Loan Notes
2026.
4. CERTIFICATE FOR NOTES
4.1 Each Noteholder shall be entitled to a certificate stating the nominal
amount of the Notes held by him. Each certificate shall bear a denoting
number, and shall (subject as provided in this clause 4.1) be executed
under the seal (or any securities seal) of the Company, shall be
substantially in the form set out in schedule 1 and shall have endorsed on
it conditions in the form or substantially in the form set out in schedule
2. Where permitted by law, a certificate signed by one Director and the
Secretary or by two Directors and expressed to be executed by the Company
shall have the same effect as if executed under the seal. The Company
shall not be bound to register joint holders of any Note. When a
Noteholder has redeemed or transferred part only of his Notes the old
certificate shall be cancelled and a new certificate for the balance of
such Notes issued without charge.
4.2 The Directors may by resolution (either generally or in any particular
case or cases) determine that the signatures required by clause 4.1 shall
be affixed by means of some method or system of mechanical signature.
5. COVENANTS BY THE COMPANY
The Company HEREBY COVENANTS with the Noteholders and each of them to
comply with the terms of the Notes and to observe and perform the
conditions, which conditions shall be deemed to be incorporated in this
instrument and shall be binding on the Company and the Noteholders and all
persons claiming through or under them respectively.
6. REGISTER OF NOTEHOLDERS
The Company shall cause a register to be maintained in respect of the
Notes.
7. FOREIGN NOTEHOLDERS
The Notes have not been and will not be registered under the United States
Securities Act of 1933, as amended, nor under any of the relevant
securities laws of any province or
2
territory of Canada or Australia. Accordingly, unless an exemption under
such Act or laws is applicable, the Notes may not be offered, sold or
delivered, directly or indirectly, in or into the United States, Canada or
Australia or to or for the account or benefit of any North American person
or resident of Canada or Australia.
8. FURTHER NOTES
The Company shall be entitled from time to time, by resolution of the
board or of a duly authorised committee thereof to create and issue
further unsecured convertible loan notes to be constituted by deed or
instrument expressed to be supplemental hereto either so as to be
identical in all respects and form a single series with the Notes or to
carry such rights as the board may think fit.
9. GOVERNING LAW
This instrument (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this instrument
or the constitution of the Notes) shall be governed by and construed in
accordance with English law. The Company hereby irrevocably submits to
the non-exclusive jurisdiction of the High Court of Justice in London for
the purpose of hearing and determining any dispute arising out of, or in
connection with, this instrument and for the purpose of enforcement of any
judgment against its assets.
IN WITNESS whereof this instrument has been executed as a deed and has been
delivered on the date which appears first on page 1.
3
