Exhibit 10.1
PLEDGE AND ESCROW AGREEMENT
by and among
INCYTE CORPORATION, as Pledgor,
U.S. BANK NATIONAL ASSOCIATION, as Trustee,
and
U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent
Dated as of September 30, 2009
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT (this "Agreement"), dated as of September 30,
2009, is by and among Incyte Corporation (the "Company"), as pledgor, U.S. Bank
National Association, as trustee under the Indenture referred to below (the
"Trustee"), and U.S. Bank National Association, in its capacity as securities
intermediary and escrow agent (the "Escrow Agent").
RECITALS
The Company and the Trustee have entered into an Indenture dated as of
September 30, 2009 (as the same may be supplemented and amended from time to
time, the "Indenture") pursuant to which the Company will issue $400,000,000 in
aggregate principal amount of its 4.75% Convertible Senior Notes due 2015 (the
"Notes").
The Company desires to establish an escrow account with the Escrow Agent into
which certain sums, as fully described in Section 2(a) below, will be,
simultaneously with the original issuance of the Notes, deposited by the Company
to be held and distributed in accordance with the terms and conditions set forth
herein, and the Escrow Agent is willing to establish such an account and to
accept such funds in accordance with the terms hereinafter set forth.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Indenture.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.
ESTABLISHMENT OF ESCROW ACCOUNT. THE
ESCROW AGENT SHALL ESTABLISH ON THE DATE HEREOF AND MAINTAIN IN THE TRUSTEE'S
NAME A "SECURITIES ACCOUNT" (WITHIN THE MEANING OF ARTICLE 8 OF THE UNIFORM
COMMERCIAL CODE OF THE STATE OF NEW YORK AS IN EFFECT FROM TIME TO TIME (THE
"NEW YORK UCC")) IDENTIFIED AS ABA NUMBER: 091000022; ACCOUNT NUMBER: 134507001;
ACCOUNT NAME : INCYTE CSN 2009 SECURED INTEREST ACCT (THE "ESCROW ACCOUNT") TO
WHICH THERE SHALL BE IMMEDIATELY CREDITED AND HELD AMOUNTS RECEIVED BY THE
ESCROW AGENT FROM THE COMPANY IN ACCORDANCE WITH SECTION 3 HEREOF. THE FUNDS
CREDITED TO THE ESCROW ACCOUNT SHALL BE APPLIED AND DISBURSED ONLY AS PROVIDED
HEREIN. THE ESCROW AGENT SHALL SEGREGATE THE FUNDS CREDITED TO THE ESCROW
ACCOUNT FROM ITS OTHER FUNDS HELD AS AN AGENT OR IN TRUST. THE ESCROW AGENT
SHALL TREAT ALL PROPERTY HELD BY IT IN THE ESCROW ACCOUNT AS "FINANCIAL ASSETS"
(AS DEFINED IN SECTION 8-L02(A)(9) OF THE NEW YORK UCC) IN ACCORDANCE WITH
SECTION 8-501 (OR SUCCESSOR SECTION) OF THE NEW YORK UCC.
SECTION 2.
DEPOSIT TO THE ESCROW ACCOUNT;
INVESTMENTS.
(A)
(I) SIMULTANEOUSLY WITH THE ORIGINAL
ISSUANCE OF THE NOTES, THE COMPANY SHALL DELIVER TO THE ESCROW AGENT FOR DEPOSIT
IN THE ESCROW ACCOUNT "PERMITTED SECURITIES" (AS DEFINED BELOW) WITH AN ORIGINAL
PURCHASE PRICE EQUAL TO $56,268,631.42 (THE "ESCROW FUNDS").
1
A DESCRIPTION OF THE PERMITTED SECURITIES THAT ARE BEING DEPOSITED IN THE ESCROW