Exhibit 10.1
THIS INSTRUMENT AND THE INDEBTEDNESS, RIGHTS AND OBLIGATIONS EVIDENCED HEREBY
AND ANY LIENS OR OTHER SECURITY INTERESTS SECURING SUCH RIGHTS AND OBLIGATIONS
ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED FROM
TIME TO TIME, THE "SUBORDINATION AGREEMENT") DATED AS OF SEPTEMBER 2, 2009, BY
AND AMONG THE SUBORDINATED CREDITORS IDENTIFIED THEREIN AND GENERAL ELECTRIC
CAPITAL CORPORATION ("GECC") IN ITS CAPACITY AS AGENT FOR CERTAIN LENDERS
(TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, "SENIOR CREDITOR AGENT"), TO CERTAIN
INDEBTEDNESS, RIGHTS, AND OBLIGATIONS OF PEPLIN LIMITED (ACN 090 819 275),
PEPLIN, INC. AND THE GUARANTORS PARTY THERETO, TO SENIOR CREDITOR AGENT AND
SENIOR CREDITOR (AS DEFINED THEREIN) AND LIENS AND SECURITY INTERESTS OF SENIOR
CREDITOR AGENT SECURING THE SAME ALL AS DESCRIBED IN THE SUBORDINATION
AGREEMENT; AND EACH HOLDER AND TRANSFEREE OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
LOAN AGREEMENT
This Loan Agreement (this "Agreement") is made and entered into as of
September 2, 2009 (the "Effective Date"), by and between Peplin, Inc., a
Delaware corporation ("Borrower"), and Leo Pharma A/S ("Lender").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, Lender, a
wholly owned subsidiary of Lender ("Merger Sub") and Borrower have entered into
an Agreement and Plan of Merger (the "Merger Agreement") whereby Borrower will
acquire Lender pursuant to the merger (the "Merger") of Merger Sub with and into
Borrower according to the terms set forth therein.
WHEREAS, as a material inducement to enter into the Merger Agreement,
Borrower desires Lender to make available, and Lender is willing to make
available, a revolving credit facility to Borrower of up to an aggregate
principal amount of $24,000,000 (the "Aggregate Amount").
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have
the meanings specified below:
"Advance" means advances made from time to time to Borrower
pursuant to this Agreement.
"Acquisition" means any of the following transactions (other than
the Merger): (a) any acquisition or purchase by any person of more than a 40%
interest in the total outstanding voting securities of Borrower or consummation
of any tender offer or exchange offer that results in any person or group
beneficially owning securities representing 40% or more of the total outstanding
voting power of Borrower, or any merger, consolidation, business combination,
share exchange or similar transaction involving Borrower pursuant to which the
Borrower's stockholders immediately preceding such transaction hold securities
representing less than 60% of the total outstanding voting power of the
surviving or resulting entity of such transaction (or parent entity of such
surviving or resulting entity); or (b) any sale, exchange, transfer, exclusive
license, or disposition of any business or businesses or assets that constitute
or account representing 40% or more of the aggregate fair market value of the
consolidated assets of Borrower and its subsidiaries taken as a whole..
"Applicable Margin" means