Financial Officer
Facsimile number: (302) 425-2707
To the Trustee or the Escrow Agent:
U.S. Bank National Association
Corporate Trust Services
633 West Fifth Street, 24th Floor
Los Angeles, CA 90071
Attn: Bradley Scarbrough (Incyte 2009 Escrow)
Fax: (213) 615-6197
or at such other address or facsimile number as the specified entity most
recently may have designated in writing in accordance with this paragraph to the
other parties. Notwithstanding the foregoing, notices to the Escrow Agent shall
be effective only upon receipt.
(H)
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. DELIVERY OF AN EXECUTED
COUNTERPART OF A SIGNATURE PAGE TO THIS AGREEMENT BY FACSIMILE SHALL BE
EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS AGREEMENT.
(I)
INTERPRETATION. THE HEADINGS OF THE SECTIONS CONTAINED IN THIS
AGREEMENT ARE SOLELY FOR CONVENIENCE OF REFERENCE AND SHALL NOT AFFECT THE
MEANING OR INTERPRETATION OF THIS AGREEMENT.
(J)
TAX MATTERS.
THE PARTIES ACKNOWLEDGE THAT, FOR TAX REPORTING
PURPOSES, ALL INTEREST ATTRIBUTABLE TO THE ESCROW FUNDS SHALL BE ALLOCABLE TO
THE COMPANY.
THE COMPANY AGREES TO PROVIDE THE ESCROW AGENT WITH CERTIFIED TAX
IDENTIFICATION NUMBERS BY FURNISHING APPROPRIATE FORM W-9 (OR FORM W-8, IN THE
CASE OF NON-U.S. PERSONS) AND OTHER FORMS AND DOCUMENTS THAT
13
THE ESCROW AGENT MAY REASONABLY REQUEST.
THE COMPANY ACKNOWLEDGES THAT FAILURE
TO SUPPLY SUCH INFORMATION MAY OBLIGATE THE ESCROW AGENT TO WITHHOLD A PORTION
OF ANY PAYMENTS MADE TO THE COMPANY PURSUANT TO THIS AGREEMENT UNDER THE
APPLICABLE PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME
TO TIME.
(K)
USA PATRIOT ACT INFORMATION.
TO HELP THE GOVERNMENT FIGHT THE
FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES ALL
FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES
EACH PERSON WHO OPENS AN ACCOUNT.
FOR A NON-INDIVIDUAL PERSON SUCH AS A
BUSINESS ENTITY, A CHARITY, A TRUST OR OTHER LEGAL ENTITY THE ESCROW AGENT WILL
ASK FOR DOCUMENTATION TO VERIFY ITS FORMATION AND EXISTENCE AS A LEGAL ENTITY.
THE ESCROW AGENT MAY ALSO ASK TO SEE FINANCIAL STATEMENTS, LICENSES,
IDENTIFICATION AND AUTHORIZATION DOCUMENTS FROM INDIVIDUALS CLAIMING AUTHORITY
TO REPRESENT THE ENTITY OR OTHER RELEVANT DOCUMENTATION.
THE COMPANY AGREES TO
PROVIDE ALL SUCH INFORMATION AND DOCUMENTATION AS REQUESTED BY ESCROW AGENT TO
ENSURE COMPLIANCE WITH UNITED STATES FEDERAL LAW.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day first written above.
INCYTE CORPORATION,
as Pledgor
By:
/s/ David C. Hastings
Name: David C. Hastings
Title: Executive Vice President and Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
/s/ Brad E. Scarbrough
Name: Brad E. Scarbrough
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
By:
/s/ Brad E. Scarbrough
Name: Brad E. Scarbrough
Title: Vice President
EXHIBIT A
Description of Permitted Securities
Bond Payment
Dates
Day Count
Payment
STRIP
Maturity
CUSIP
Price