tcda-20230109
--12-31false000159558500015955852023-01-092023-01-09

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 9, 2023
https://cdn.kscope.io/abdcc5b90e6fcd0d3cb142cb974308ee-tcda-20230109_g1.jpg
TRICIDA, INC.
(Exact name of Registrant as specified in its charter)
Delaware

001-38558

46-3372526
(State or other jurisdiction of incorporation)

(Commission File Number)

(I.R.S. Employer Identification Number)
7000 Shoreline Court
Suite 201
South San Francisco, CA 94080
(Address of principal executive offices) (Zip Code)
(415) 429-7800
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act
Title of each classTrading Symbol(s)Name of exchange on which registered
Common stock, par value $0.001 per shareTCDAThe Nasdaq Global Select Market
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company






If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.




Item 1.01
Entry into a Material Definitive Agreement.
On January 11, 2023, Tricida, Inc. (the “Company”) executed a Restructuring Support Agreement (the “Restructuring Support Agreement”) with holders holding in excess of 80% of the aggregate amount of the Company’s 3.50% Convertible Senior Notes due 2027 (the “Notes,” and the holders thereof, the “Consenting Noteholders”).
The Restructuring Support Agreement includes milestones designed to facilitate an expedited sale process meant to maximize the value of the Company’s assets while preserving cash for the benefit of the Company’s estate and its creditors. In furtherance of this goal, the Restructuring Support Agreement milestones commit the Company to certain case milestones, including, among others, the filing of a motion to approve sale, bidding, and notice procedures on the petition date, as well as a timeline for filing of a disclosure statement and liquidating plan, the entry of an order approving bid procedures, a qualified bid deadline, an auction, if multiple bids are received, the entry of an order approving the sale, and the entry of an order confirming a plan. Failure to meet any of the case milestones set forth in the Restructuring Support Agreement would allow the Consenting Noteholders to terminate the Restructuring Support Agreement, reducing certainty and increasing costs to the detriment of the Company, its estate, its stakeholders, and all parties in interest.
In addition, the Restructuring Support Agreement establishes a process for the implementation of the liquidating plan through the creation of a liquidating trust and sets up a general framework for the treatment of claims against and equity interests in the Company. Finally, the Restructuring Support Agreement contains certain negotiated releases for the Company, its directors and officers, and the Consenting Noteholders, contains a commitment to pay prepetition and, with court approval, postpetition professional fees and expenses of the Consenting Noteholders, and contains a commitment to pay the outstanding November 15, 2022 interest payment due under the Notes, which was paid on January 11, 2023.
The foregoing summary of the terms and conditions of the Restructuring Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Restructuring Support Agreement attached hereto as Exhibit 10.1, which is incorporated herein by reference.
Item 1.03
Bankruptcy or Receivership.
On January 11, 2023, the Company filed a voluntary petition for relief under chapter 11 (“Chapter 11”) of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (“Bankruptcy Court”) thereby commencing a Chapter 11 case for the Company (Case No. 23-10024). The Company will continue to operate its business as a “debtor in possession” under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court. The Company is seeking approval of various “first day” motions with the Bankruptcy Court, requesting customary relief intended to enable the Company to continue its ordinary course operations and to facilitate an orderly wind down of its operations. The Company intends to sell substantially all of its assets during the bankruptcy case consistent with and pursuant to the milestones set forth in the Restructuring Support Agreement.
The Company cannot be certain that holders of the Company’s common stock will receive any payment or other distribution on account of those shares following the bankruptcy proceedings.
Additional information about the Chapter 11 case, including access to the Restructuring Support Agreement, is available online at http://www.kccllc.net/Tricida. The information on that website is not incorporated by reference and does not constitute part of this Current Report on Form 8-K.
Item 2.04
Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
As previously disclosed, on May 22, 2020, the Company entered into an indenture (the “Indenture”) with U.S. Bank National Association, as trustee (“US Bank”), relating to the Company’s Notes.
The bankruptcy filing described in Item 1.03 above constitutes an event of default that accelerates the Company’s obligations under the Indenture and the Notes. The Indenture provides that upon the bankruptcy filing the principal and interest due under the Indenture shall automatically become due and payable. Any efforts to enforce such payment obligations under the Indenture are automatically stayed as a result of the bankruptcy filing, and the creditors’ rights of enforcement in respect of the Indenture is subject to the applicable provisions of the Bankruptcy Code.



Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On December 23, 2022, the Board of Directors (the “Board”) of the Company approved an increase in the size of the Board from seven to eight members and on January 9, 2023, Thomas G. FitzGerald became a member of the Board. Mr. FitzGerald will serve as a Class I director with a term expiring at the 2025 annual meeting of stockholders. The Board determined that Mr. FitzGerald qualifies as an independent director pursuant to the listing standards of the Nasdaq Stock Market. On January 10, 2023, the Board appointed Thomas G. FitzGerald as the sole member of the Special Committee (as defined below).
Mr. FitzGerald has over 30 years of experience in bankruptcy & restructuring, corporate finance, capital markets and forensic accounting. Since November 2019, Mr. FitzGerald has served in various independent fiduciary and restructuring roles at Drivetrain LLC, a New York based boutique fiduciary services firm. Prior to Drivetrain, Mr. FitzGerald spent 10 years at Macquarie Group, an Australian bank, as a Senior Managing Director in several roles. Prior to Macquarie, Mr. FitzGerald held roles as a Managing Director at JPMorgan Chase and Deutsche Bank and was a Senior Accountant at Price Waterhouse. Since 2021, Mr. FitzGerald has served on the Board of Directors of Treehouse Real Estate Investment Trust where he is a member of the Audit Committee and the Governance & Nominating Committee. Mr. FitzGerald previously served as the Independent Director and special committee member for Ventec Life Systems, Inc., a medical device manufacturer, and served as the sole Independent Director and special committee member for Wave Computing, Inc., a Silicon Valley based processor technology company. Mr. FitzGerald has a B.S. in Finance and an M.B.A. from Fordham University in New York.
In connection with the appointment of Mr. FitzGerald as a director, the Company entered into an independent director agreement with Mr. FitzGerald (“Director Agreement”), pursuant to which he is entitled to an advance monthly fee of $25,000 per month (“Monthly Fees”) as compensation for his services. The Company shall pay the Monthly Fees corresponding to a period of no less than six (6) months, regardless of whether Mr. FitzGerald’s appointment ends for any reason during that period or whether Mr. FitzGerald’s successor, if any, has been duly elected and appointed to the Board. The foregoing summary of the terms and conditions of the Director Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Director Agreement attached hereto as Exhibit 10.2, which is incorporated herein by reference.
Additionally, in connection with this appointment, the Company also entered into an indemnification agreement with Mr. Fitzgerald that is in substantially the same form as those entered into with other directors and executive officers of the Company.
Mr. FitzGerald is not a party to any transaction with the Company that would require disclosure under Item 404(a) of Regulation S-K and there are no arrangements or understandings between Mr. FitzGerald and any other persons pursuant to which he was appointed as director of the Company.
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective January 10, 2023, the Board adopted an Amendment to the Amended and Restated Bylaws of the Company (the “Bylaws Amendment”), a copy of which is filed herewith as Exhibit 3.1. The Bylaws Amendment was adopted for the purpose of establishing a single-member special committee of the Board (the “Special Committee”) to engage in the evaluation of any causes of action of the Company in which a conflict of interest exists or is reasonably likely to exist between the Company and certain related parties. The applicable provisions can be found in Article II, Section 2.12 of the Amended and Restated Bylaws, attached hereto as Exhibit 3.1, which is incorporated herein by reference.
This Current Report on Form 8-K includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements relate to expectations concerning matters that are not historical facts. Words such as “projects,” “believes,” “anticipates,” “plans,” “expects,” “intends,” “may,” “will,” “could,” “should,” “would,” and similar words and expressions are intended to identify forward-looking statements. Forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those discussed in such forward-looking statements. Such risks and uncertainties include, without limitation, the outcome of the Chapter 11 proceedings, the Company’s contractual and financial obligations to key suppliers and vendors; the Company’s financial projections and cost estimates; the Company’s ability to raise additional funds; and risks associated with the Company’s business prospects, financial results and business operations. These and other factors that may affect the Company’s future business prospects, results and operations are identified and described in more detail in the Company’s filings with the Securities and Exchange Commission (the “SEC”), including the Company’s most recent Annual Report filed on Form 10-K and the subsequently filed Quarterly Report(s) on Form 10-Q. You should not place undue reliance on these forward-looking



statements, which speak only as of the date of this press release. Except as required by applicable law, the Company does not intend to update any of the forward-looking statements to conform these statements to actual results, later events or circumstances or to reflect the occurrence of unanticipated events.
Item 9.01Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number Description
3.1
10.1
10.2
104Cover Page Interactive Data File (embedded within the Inline XBRL document).



SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.





Dated: January 12, 2023

TRICIDA, INC.






By:

/s/ Geoffrey M. Parker


Name:

Geoffrey M. Parker


Title:

Chief Operating Officer, Chief Financial Officer and Executive Vice President




ex31-tcdaxamendedandrest
Exhibit 3.1 AMENDED AND RESTATED BYLAWS OF TRICIDA, INC. (hereinafter called the “Corporation”) ARTICLE I MEETINGS OF STOCKHOLDERS Section 1.1. Place of Meetings. Meetings of the stockholders of the Corporation for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors of the Corporation (the “Board”). Section 1.2. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly be brought before the meeting in accordance with these amended and restated bylaws of the Corporation (as amended from time to time in accordance with the provisions hereof, these “Bylaws”) shall be held on such date and at such time as shall be designated from time to time by the Board. The Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board. Section 1.3. Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation (including, without limitation, the terms of any certificate of designation with respect to any series of preferred stock), as amended and restated from time to time (the “Certificate of Incorporation”), special meetings of the stockholders of the Corporation, for any purpose or purposes, may be called only by the Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Board. The ability of the stockholders of the Corporation to call a special meeting of stockholders is hereby specifically denied. At a special meeting of stockholders, only such business shall be conducted as shall be specified in the notice of meeting. The Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Board may postpone, reschedule or cancel any special meeting of stockholders previously called by any of them. Section 1.4. Notice. Whenever stockholders of the Corporation are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and time of the meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called and the means of remote communications, if any, by which stockholders and proxy holders may be deemed present in person and vote at such meeting. Unless otherwise required by law or the Certificate of Incorporation, written notice of any meeting shall be given either personally, by mail or by electronic transmission (if permitted under the circumstances by the General Corporation Law of the State of Delaware, as amended (the “DGCL”)) not less than ten (10) nor more than sixty (60) days before the date of the meeting, by or at the direction of the Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Board, to each stockholder entitled to vote at such meeting as of the record date for determining stockholders entitled to notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at the stockholder’s address as it appears on the stock transfer books of the Corporation. If notice is given by means of electronic transmission, such notice shall be deemed to be given at the times provided in the DGCL. Any stockholder may waive notice of any meeting before or after the meeting. The attendance of a stockholder at any meeting shall constitute a waiver of notice at such meeting, except where the stockholder attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.


 
Section 1.5. Adjournments. Any meeting of stockholders of the Corporation may be adjourned from time to time to reconvene at the same or some other place by holders of a majority of the voting power of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, though less than a quorum, or by any officer entitled to preside at or to act as secretary of such meeting, and notice need not be given of any such adjourned meeting if the time and place thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, notice of the adjourned meeting in accordance with the requirements of Section 1.4 of these Bylaws shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment, a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. Section 1.6. Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the voting power of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders. Where a separate vote by a class or classes or series is required, a majority of the voting power of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to such vote. If a quorum shall not be present or represented at any meeting of stockholders, either the chairperson of the meeting or the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 1.5 of these Bylaws, until a quorum shall be present or represented. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. Section 1.7. Voting. (a) Matters Other Than Election of Directors. Any matter brought before any meeting of stockholders of the Corporation, other than the election of directors, shall be decided by the affirmative vote of the holders of a majority of the voting power of the Corporation’s capital stock present in person or represented by proxy at the meeting and entitled to vote on such matter, voting as a single class, unless the matter is one upon which, by express provision of law, the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such matter. Except as provided in the Certificate of Incorporation, every stockholder having the right to vote shall have one vote for each share of stock having voting power registered in such stockholder’s name on the books of the Corporation. Such votes may be cast in person or by proxy as provided in Section 1.10 of these Bylaws. The Board, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in such officer’s discretion, may require that any votes cast at such meeting shall be cast by written ballot. (b) Election of Directors. Subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, election of directors at all meetings of the stockholders at which directors are to be elected shall be by a plurality of the votes cast at any meeting for the election of directors at which a quorum is present. Section 1.8. Voting of Stock of Certain Holders. Shares of stock of the Corporation standing in the name of another corporation or entity, domestic or foreign, and entitled to vote may be voted by such officer, agent or proxy as the bylaws or other internal regulations of such corporation or entity may prescribe or, in the absence of such provision, as the board of directors or comparable body of such corporation or entity may determine. Shares of stock of the Corporation standing in the name of a deceased person, a minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator, debtor- in-possession or trustee, as the case may be, either in person or by proxy, without transfer of such shares into the name of the official or other person so voting. A stockholder whose shares of stock of the Corporation are pledged shall be entitled to vote such shares, unless on the transfer records of the Corporation such stockholder has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or the pledgee’s proxy, may vote such shares.


 
Section 1.9. Treasury Stock. Shares of stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders of the Corporation and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present. Nothing in this Section 1.9 shall limit the right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity. Section 1.10. Proxies. Each stockholder entitled to vote at a meeting of stockholders of the Corporation may authorize another person or persons to act for such stockholder by proxy filed with the secretary of the Corporation (the “Secretary”) before or at the time of the meeting. No such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date. Section 1.11. No Consent of Stockholders in Lieu of Meeting. Except as otherwise expressly provided by the terms of any series of preferred stock permitting the holders of such series of preferred stock to act by written consent, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation, and, as specified by the Certificate of Incorporation, the ability of the stockholders to consent in writing to the taking of any action is specifically denied. Section 1.12. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make or have prepared and made, at least ten (10) days before every meeting of stockholders of the Corporation, a complete list of the stockholders entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Section 1.13. Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders of the Corporation or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, but the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 1.13 at the adjourned meeting.


 
Section 1.14. Organization and Conduct of Meetings. The Chairperson of the Board shall act as chairperson of meetings of stockholders of the Corporation. The Board may designate any other director or officer of the Corporation to act as chairperson of any meeting in the absence of the Chairperson of the Board, and the Board may further provide for determining who shall act as chairperson of any meeting of stockholders in the absence of the Chairperson of the Board and such designee. The Board may adopt by resolution such rules and regulations for the conduct of any meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess or adjourn the meeting to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairperson of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants. Except to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. Section 1.15. Inspectors of Election. In advance of any meeting of stockholders of the Corporation, the Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Board, by resolution, shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by applicable law. Section 1.16. Nature of Business at Meetings of Stockholders. (a) General. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s proxy materials with respect to such meeting given by or at the direction of the Board (or any duly authorized committee thereof), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board (or any duly authorized committee thereof) or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 1.16 and on the record date for the determination of stockholders entitled to notice of and to vote at such annual meeting, (B) who is entitled to vote at such annual meeting and (C) who complies with the notice procedures set forth in this Section 1.16. In addition to the other requirements set forth in this Section 1.16, a stockholder may not transact any business at an annual meeting unless (1) such stockholder and any beneficial owner on whose behalf such business is proposed (each, a “Proposing Party”) acted in a manner consistent with the representation made in the Business Solicitation Representation (as defined below) and (2) such business is a proper matter for stockholder action under the DGCL. For the avoidance of doubt, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”)) at an annual meeting of stockholders. (b) Timing of Notice. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a stockholder’s notice must be received by the Secretary at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if


 
no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (i) ninety (90) days prior to such annual meeting and (ii) ten (10) days after the earlier of (A) the day on which notice of the date of the meeting was mailed or (B) the day on which public disclosure of the date of the meeting was made. In no event shall an adjournment of an annual meeting, or a postponement of an annual meeting for which notice has been given, or the public disclosure thereof, commence a new time period for the giving of a stockholder’s notice as described above. (c) Form of Notice. To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each matter each Proposing Party proposes to bring before the annual meeting, a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address of each Proposing Party, (iii)(A) the class or series and number of shares of capital stock (if any) of the Corporation that are, directly or indirectly, owned beneficially or of record by each Proposing Party or any Stockholder Associated Person (as defined below), (B) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Corporation, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Corporation, including, without limitation, due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the holder thereof may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by each Proposing Party or any Stockholder Associated Person, (C) any proxy, contract, arrangement, understanding or relationship pursuant to which any Proposing Party or any Stockholder Associated Person has a right to vote any class or series of shares of the Corporation, (D) any Short Interest (as defined below) held by or involving any Proposing Party or any Stockholder Associated Person, (E) any rights to dividends on the shares of the Corporation owned beneficially by any Proposing Party or any Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any Proposing Party or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (G) any performance-related fees (other than an asset-based fee) that any Proposing Party or any Stockholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, including, without limitation, any such interests held by members of such Proposing Party’s or such Stockholder Associated Person’s immediate family sharing the same household, (H) any significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Corporation held by any Proposing Party or any Stockholder Associated Person and (I) any direct or indirect interest of any Proposing Party or any Stockholder Associated Person in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, without limitation, any employment agreement, collective bargaining agreement or consulting agreement) (which information described in this clause (iii) shall be supplemented by such stockholder not later than ten (10) days after the record date for the meeting to disclose such information as of the record date); (iv) a description of all arrangements or understandings between any Proposing Party or any Stockholder Associated Person and any other person or persons (including their names) in connection with the proposal of such business by such Proposing Party and any material interest of any Proposing Party and any Stockholder Associated Person in such business; (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting; (vi) a Business Solicitation Representation (as defined below); and (vii) any other information relating to each Proposing Party that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for stockholder proposals


 
pursuant to Section 14 of the Exchange Act or the rules and regulations promulgated thereunder (the “Proxy Rules”). (d) Definitions. For purposes of these Bylaws, (i) “Business Solicitation Representation” shall mean, with respect to any Proposing Party, a representation as to whether or not such Proposing Party or any Stockholder Associated Person will deliver a proxy statement and form of proxy to the holders of at least the percentage of the Corporation’s voting shares required under applicable law to adopt such proposed business or otherwise to solicit proxies from stockholders in support of such proposal; (ii) “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act; (iii) “Short Interest” shall mean any agreement, arrangement, understanding, relationship or otherwise, including, without limitation, any repurchase or similar so-called “stock borrowing” agreement or arrangement, involving any Proposing Party or any Nominating Party, as applicable, or any Stockholder Associated Person of any Proposing Party or Nominating Party, as applicable, directly or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any class or series of shares of the Corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Party or such Nominating Party, as applicable, or any Stockholder Associated Person of any Proposing Party or Nominating Party, as applicable, with respect to any class or series of shares of the Corporation, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of shares of the Corporation; and (iv) “Stockholder Associated Person” shall mean, with respect to any Proposing Party or any Nominating Party (as defined below), (A) any person directly or indirectly controlling, controlled by, under common control with or acting in concert with such Proposing Party or Nominating Party (as applicable) or (B) any member of the immediate family of such Proposing Party or Nominating Party (as applicable) sharing the same household. (e) Improper Business. No business shall be conducted at the annual meeting of stockholders of the Corporation except business brought before the annual meeting in accordance with the procedures set forth in this Section 1.16. If the chairperson of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairperson shall declare to the meeting that the business was not properly brought before the meeting, and such business shall not be transacted. Notwithstanding the foregoing provisions of this Section 1.16, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to propose business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.16, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Section 1.17. Nomination of Directors. (a) General. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Certificate of Incorporation with respect to the right, if any, of holders of preferred stock of the Corporation to nominate and elect a specified number of directors in certain circumstances and except as may otherwise be provided in the Proxy Rules. Nominations of persons for election to the Board may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors, (i) by or at the direction of the Board (or any duly authorized committee thereof) or (ii) by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 1.17 and on the record date for the determination of stockholders entitled to notice of and to vote at such meeting, (B) who is entitled to vote at such meeting and (C) who complies with the notice procedures set forth in this Section 1.17. In addition to the other requirements set forth herein, a stockholder may not present a nominee for election at an annual or a special meeting unless such stockholder, and any beneficial owner on whose behalf such nomination is made, acted in a manner consistent with the representations made in the Nominee Solicitation Representation (as defined below).


 
(b) Timing of Notice. In addition to any other applicable requirements, for a nomination to be made by a stockholder of the Corporation, such stockholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a stockholder’s notice must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (A) ninety (90) days prior to such annual meeting and (B) ten (10) days after the earlier of (1) the day on which notice of the date of the meeting was mailed or (2) the day on which public disclosure of the date of the meeting was made; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, no more than ten (10) days after the earlier of (A) the day on which notice of the date of the special meeting was mailed or (B) the day on which public disclosure of the date of the special meeting was made. In no event shall an adjournment of an annual or a special meeting, or a postponement of such a meeting for which notice has been given, or the public disclosure thereof, commence a new time period for the giving of a stockholder’s notice as described above. Notwithstanding the foregoing, in the event that the number of directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under this Section 1.17 and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.17 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation. (c) Form of Notice. To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of such person; (B) the principal occupation or employment of such person; (C) the class or series and number of shares of capital stock (if any) of the Corporation that are, directly or indirectly, owned beneficially or of record by such person; and (D) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors required pursuant to the Proxy Rules; (ii) the name and address of the stockholder giving the notice and the beneficial owner, if any, on whose behalf such nomination is made (each, a “Nominating Party”), (iii) as to each Nominating Party (A) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned beneficially or of record by each Nominating Party or any Stockholder Associated Person, (B) any Derivative Instrument directly or indirectly owned beneficially by each Nominating Party or any Stockholder Associated Person, (C) any proxy, contract, arrangement, understanding or relationship pursuant to which any Nominating Party or any Stockholder Associated Person has a right to vote any class or series of shares of the Corporation, (D) any Short Interest held by or involving any Nominating Party or any Stockholder Associated Person, (E) any rights to dividends on the shares of the Corporation owned beneficially by any Nominating Party or any Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any Nominating Party or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (G) any performance-related fees (other than an asset-based fee) that any Nominating Party or any Stockholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, including, without limitation, any such interests held by members of such Nominating Person’s or such Stockholder Associated Person’s immediate family sharing the same household, (H) any significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Corporation held by any Nominating Party or any Stockholder Associated Person and (I) any direct or indirect interest of any Nominating Party or any Stockholder Associated Person in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, without limitation, any employment agreement, collective bargaining agreement or consulting agreement) (which information described in this clause (iii) shall be supplemented by such stockholder not later than ten (10) days after the record date for the meeting to disclose such information as of the record date); (iv) a description of all arrangements or understandings


 
between any Nominating Party or any Stockholder Associated Person and each proposed nominee or any other person or persons (including their names) pursuant to which the nomination(s) are to be made, (v) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice, (vi) a representation (a “Nominee Solicitation Representation”) as to whether or not such Nominating Party or any Stockholder Associated Person will deliver a proxy statement and form of proxy to a number of holders of the Corporation’s voting shares reasonably believed by such Nominating Party to be sufficient to elect its nominee or nominees or otherwise to solicit proxies from stockholders in support of such nominations, (vii) a written questionnaire with respect to the background and qualification of each proposed nominee and the background of any other person or entity on whose behalf the nomination is being made (in the form provided by the Secretary upon written request), (viii) a written representation and agreement (in the form provided by the Secretary upon written request) that such person (x) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (y) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (z) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation, and (ix) any other information relating to each Nominating Party that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to the Proxy Rules. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation. (d) Defective Nominations. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 1.17. If the chairperson of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairperson shall declare to the meeting that the nomination was defective, and such defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1.17, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.17, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Section 1.18 Exchange Act. Notwithstanding the provisions of Section 1.16 and Section 1.17 above, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in such sections. Nothing in such sections shall be deemed to affect any rights of (i) stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act, (ii) stockholders to request inclusion of nominees in the Corporation’s proxy statement pursuant to the Proxy Rules or (iii) the holders of any series of preferred stock to elect directors under specified circumstances. ARTICLE II DIRECTORS Section 2.1. Number. The number of directors that shall constitute the entire Board shall not be less than seven (7) nor more than twelve (12). Within such limit, the number of members of the entire Board shall be fixed solely and


 
exclusively by resolution duly adopted from time to time by the Board of Directors, subject to the rights of the holders of any series of preferred stock with respect to the election of directors, if any. Section 2.2. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation required to be exercised or done by the stockholders. Section 2.3. Meetings. The Board may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board may be held at such time and at such place as may from time to time be determined by the Board. Special meetings of the Board may be called by the Chairperson of the Board (if there be one), the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Board and shall be held at such place, on such date and at such time as he, she or it shall specify. Section 2.4. Notice. Notice of any meeting of the Board stating the place, date and time of the meeting shall be given to each director by mail posted not less than five (5) days before the date of the meeting, by nationally recognized overnight courier deposited not less than two (2) days before the date of the meeting or by email, facsimile or other means of electronic communication delivered or sent not less than twenty-four (24) hours before the date and time of the meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. If mailed or sent by overnight courier, such notice shall be deemed to be given at the time when it is deposited in the United States mail with first class postage prepaid or deposited with the overnight courier. Notice by facsimile or other electronic transmission shall be deemed given when the notice is transmitted. Any director may waive notice of any meeting before or after the meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in any notice of such meeting unless so required by law. A meeting may be held at any time without notice if all of the directors are present or if those not present waive notice of the meeting in accordance with Section 5.6 of these Bylaws. Section 2.5. Chairperson of the Board. The Chairperson of the Board shall be chosen from among the directors and may be the Chief Executive Officer. Except as otherwise provided by law, the Certificate of Incorporation or Section 2.6 or Section 2.7 of these Bylaws, the Chairperson of the Board shall preside at all meetings of stockholders and of the Board. The Chairperson of the Board shall have such other powers and duties as may from time to time be assigned by the Board. Section 2.6. Lead Director. The Board may include a Lead Director. The Lead Director shall be one of the directors who has been determined by the Board to be an “independent director” (any such director, an “Independent Director”). The Lead Director shall preside at all meetings of the Board at which the Chairperson of the Board is not present, preside over the executive sessions of the Independent Directors, serve as a liaison between the Chairperson of the Board and the Board and have such other responsibilities, and perform such duties, as may from time to time be assigned to him or her by the Board. The Lead Director shall be elected by a majority of the Independent Directors. Section 2.7. Organization. At each meeting of the Board, the Chairperson of the Board, or, in the Chairperson’s absence, the Lead Director, or, in the Lead Director’s absence, a director chosen by a majority of the directors present, shall act as chairperson. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an assistant secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all assistant secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting. Section 2.8. Resignations and Removals of Directors. Any director of the Corporation may resign at any time, by giving notice in writing or by electronic transmission to the Chairperson of the Board, the Chief Executive Officer, the President (in the absence of a Chief Executive Officer) or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other event, and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it


 
effective. Subject to the rights of holders of any series of preferred stock with respect to the election of directors, a director may be removed from office by the stockholders of the Corporation in accordance with the provisions of the DGCL. Section 2.9. Quorum. At all meetings of the Board, a majority of directors constituting the Board shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present. Section 2.10. Actions of the Board by Written Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all the members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission are filed with the minutes of proceedings of the Board or committee. Section 2.11. Telephonic Meetings. Members of the Board, or any committee thereof, may participate in a meeting of the Board or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear and speak with each other, and participation in a meeting pursuant to this Section 2.11 shall constitute presence in person at such meeting. Section 2.12. Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation and, to the extent permitted by law, to have and exercise such authority as may be provided for in the resolutions creating such committee, as such resolutions may be amended from time to time. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any absent or disqualified member. Each committee shall keep regular minutes and report to the Board when required. A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. The Board shall have the power at any time to fill vacancies in, to change the membership of or to dissolve any such committee. Section 2.13. Compensation. The Board shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the Board or any committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for service as director or committee member, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Directors who are full-time employees of the Corporation shall not receive any compensation for their service as director. Section 2.14. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of the Corporation’s directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee and the Board or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board, a committee thereof or the


 
stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee that authorizes the contract or transaction. ARTICLE III OFFICERS Section 3.1. General. The officers of the Corporation shall be chosen by the Board and shall be a Chief Executive Officer, a principal financial officer, a principal accounting officer, a President, a Secretary and a Treasurer. The Board, in its discretion, may also choose one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers as the Board from time to time may deem appropriate. Any two or more offices may be held by the same person. The officers of the Corporation need not be stockholders of the Corporation. Section 3.2. Election; Term. The Board shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board, and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer may be removed at any time by the Board. Any officer may resign upon notice given in writing or electronic transmission to the Chief Executive Officer or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other event. Any vacancy occurring in any office of the Corporation shall be filled in the manner prescribed in this Article III for the regular election to such office. Section 3.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer or any other officer authorized to do so by the Board, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board may, by resolution, from time to time confer like powers upon any other person or persons. Section 3.4. Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the Board, have general supervision over the business of the Corporation and shall direct the affairs and policies of the Corporation. The Chief Executive Officer may also serve as Chairperson of the Board and may also serve as President, if so elected by the Board. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board. Section 3.5. President. The President shall act in a general executive capacity and shall assist the Chief Executive Officer in the administration and operation of the Corporation’s business and general supervision of its policies and affairs. The President shall, in the absence of or because of the inability to act of the Chief Executive Officer, perform all duties of the Chief Executive Officer. Section 3.6. Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. The Executive Vice Presidents (if any), Senior Vice Presidents (if any) and such other Vice Presidents as shall have been chosen by the Board shall have such powers and shall perform such duties as shall be assigned to them by the Board. Section 3.7. Secretary. The Secretary shall give the requisite notice of meetings of stockholders and directors and shall record the proceedings of such meetings, shall have custody of the seal of the Corporation and shall affix it or cause it to be affixed to such instruments as require the seal and attest it and, besides the Secretary’s powers and duties prescribed by law, shall have such other powers and perform such other duties as shall at any time be assigned to such officer by the Board. Section 3.8. Treasurer. The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be


 
authorized by the Board or in such banks as may be designated as depositaries in the manner provided by resolution of the Board. The Treasurer shall have such other powers and perform such other duties as shall at any time be assigned to such officer by the Board. Section 3.9. Assistant Secretaries. Assistant Secretaries, if there be any, shall assist the Secretary in the discharge of the Secretary’s duties, shall have such powers and perform such other duties as shall at any time be assigned to them by the Board and, in the absence or disability of the Secretary, shall perform the duties of the Secretary’s office, subject to the control of the Board. Section 3.10. Assistant Treasurers. Assistant Treasurers, if there be any, shall assist the Treasurer in the discharge of the Treasurer’s duties, shall have such powers and perform such other duties as shall at any time be assigned to them by the Board and, in the absence or disability of the Treasurer, shall perform the duties of the Treasurer’s office, subject to the control of the Board. Section 3.11. Other Officers. Such other officers as the Board may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board. The Board may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE IV STOCK Section 4.1. Uncertificated Shares. Unless otherwise provided by resolution of the Board, each class or series of shares of the Corporation’s capital stock shall be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form. Shares shall be transferable only on the books of the Corporation by the holder thereof in person or by attorney upon presentment of proper evidence of succession, assignation or authority to transfer in accordance with the customary procedures for transferring shares in uncertificated form. Section 4.2. Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be the close of business on the day on which the Board adopts the resolution relating thereto. Section 4.3. Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law. Section 4.4. Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board. ARTICLE V MISCELLANEOUS Section 5.1. Contracts. The Board may authorize any officer or officers or any agent or agents to enter into any contract or execute and deliver any instrument or other document in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.


 
Section 5.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board may from time to time designate. Section 5.3. Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of December in each year or on such other day as may be fixed from time to time by resolution of the Board. Section 5.4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. Section 5.5. Offices. The Corporation shall maintain a registered office inside the State of Delaware and may also have other offices outside or inside the State of Delaware. The books of the Corporation may be kept (subject to any applicable law) outside the State of Delaware at the principal executive offices of the Corporation or at such other place or places as may be designated from time to time by the Board. Section 5.6. Waiver of Notice. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the DGCL or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or any regular or special meeting of the Board or committee thereof need be specified in any waiver of notice of such meeting unless so required by law. ARTICLE VI AMENDMENTS These Bylaws may be adopted, amended, altered or repealed by the Board or by the stockholders of the Corporation by the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class; provided, however, that, in the case of any adoption, amendment, alteration or repeal of these Bylaws by the stockholders of the Corporation, notwithstanding any other provision of these Bylaws, and in addition to any other vote that may be required by law or the terms of any series of preferred stock, the affirmative vote of the holders of at least sixty six and two-thirds percent (66 2/3%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal or adopt any provision inconsistent with Sections 1.3, 1.7(b), 1.11, 1.13, 1.16, 1.17, 2.1, 2.8, 2.9, 2.10, 2.13 or 2.14 or this Article VI. * * * Adopted January 10, 2023 and effective January 10, 2023.


 
exhibit101_tricida-restr
THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER OR ACCEPTANCE WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. NOTHING CONTAINED IN THIS RESTRUCTURING SUPPORT AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON THE TERMS DESCRIBED HEREIN, DEEMED BINDING ON ANY OF THE PARTIES HERETO. RESTRUCTURING SUPPORT AGREEMENT This RESTRUCTURING SUPPORT AGREEMENT (including all exhibits, annexes, and schedules hereto in accordance with Section 13.02, this “Agreement”) is made and entered into as of January 11, 2023 (the “Execution Date”), by and among the following parties (each of the following described in sub-clauses (a) through (b) of this preamble, collectively, the “Parties”):1 (a) Tricida, Inc., a company incorporated under the Laws of Delaware (the “Debtor”); and (b) the undersigned holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold, the Noteholder Claims that have executed and delivered counterpart signature pages to this Agreement, a Joinder, or a Transfer Agreement, to counsel to the Debtor (the Entities in this clause (ii), collectively, the “Consenting Noteholders”). RECITALS WHEREAS, the Debtor and the Consenting Noteholders have in good faith and at arms’ length negotiated or been apprised of a proposed plan of liquidation that contemplates the sale of the Debtor’s assets in a voluntary case under chapter 11 of the Bankruptcy Code in the Court (the “Case”) on the terms set forth in this Agreement and as specified in the term sheet attached as Exhibit A hereto (the “Term Sheet” and, such transactions as described in this Agreement and the Term Sheet, the “Transaction”); and WHEREAS, the Parties have agreed to take certain actions in support of the Transaction on the terms and conditions set forth in this Agreement and the Term Sheet; NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows: 1 Capitalized terms used but not defined in the preamble and recitals to this Agreement have the meanings ascribed to them in Section 1.


 
2 AGREEMENT Section 1. Definitions and Interpretation. 1.01. Definitions. The following terms shall have the following definitions: “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code as if such entity was a debtor in a case under the Bankruptcy Code. “Agreement” has the meaning set forth in the preamble to this Agreement and, for the avoidance of doubt, includes all the exhibits, annexes, and schedules hereto in accordance with Section 13.02 (including the Term Sheet). “Agreement Effective Date” means the date on which the conditions set forth in Section 2 have been satisfied or waived by the appropriate Party or Parties in accordance with this Agreement; provided that the Agreement Effective Date with respect to any Joinder Party shall be the date that such Joinder Party executes a Joinder. “Agreement Effective Period” means, with respect to a Party, the period from the Agreement Effective Date to the Termination Date applicable to that Party. “Alternative Restructuring Proposal” means any inquiry, proposal, offer, bid, term sheet, discussion, or agreement (in each case whether oral or written) with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment, liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, or similar transaction involving the Debtor or the debt, equity, or other interests in the Debtor that is an alternative to the Transaction. “Auction” means an auction conducted by the Debtor in the event that multiple bids are received by the Qualified Bid Deadline, which shall proceed in accordance with the procedures laid out in the Sale Motion and the Order Approving Bid Procedures. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended. “Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York. “Case” has the meaning set forth in the recitals to this Agreement. “Causes of Action” means any claims, interests, damages, remedies, causes of action, demands, rights, actions, controversies, proceedings, agreements, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured,


 
3 suspected or unsuspected, whether arising before, on, or after the Petition Date, in contract, tort, law, equity, or otherwise. Causes of Action also include: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law or in equity; (b) the right to object to or otherwise contest Claims or Interests; (c) claims pursuant to section 362 or chapter 5 of the Bankruptcy Code; (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code; and (e) any avoidance actions arising under chapter 5 of the Bankruptcy Code or under similar local, state, federal, or foreign statutes and common law, including fraudulent transfer laws. “Chapter 11 Budget” means the Debtor’s budget, originally attached as Exhibit A to the Term Sheet, and updated on a rolling basis from time to time thereafter pursuant to terms of the Term Sheet. “Claim” has the meaning set forth in section 101(5) of the Bankruptcy Code. “Confidentiality Agreement” means an executed confidentiality agreement, including with respect to the issuance of a “cleansing letter” or other public disclosure of material non-public information agreement, in connection with any proposed Transaction. “Confirmation Order” means the confirmation order with respect to the Plan. “Consenting Noteholders” has the meaning set forth in the preamble of this Agreement. “Consenting Noteholder Fees and Expenses” means (a) the reasonable and documented fees and expenses of Davis Polk & Wardwell LLP, as counsel to the Consenting Noteholders and the Trustee, FTI Consulting, Inc., as financial advisor to the Consenting Noteholders and the Trustee, and Greenberg Traurig LLP, as counsel to the Trustee; (b) all fees and expenses due to U.S. Bank Trust Company, National Association, as trustee; and (c) any other reasonable and documented prepetition fees, costs, and expenses of any of the Consenting Noteholders incurred in connection with the Transaction. “Court” means the United States Bankruptcy Court in which the Case is commenced or another United States Bankruptcy Court with jurisdiction over the Case. “Debtor” has the meaning set forth in the recitals to this Agreement. “Debtor Claims/Interests” means any Claim against, or Interest in, the Debtor, including the Noteholder Claims. “Definitive Documents” means the documents listed in Section 3.01. “Disclosure Statement” means the related disclosure statement with respect to the Plan and any exhibits and schedules thereto, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement. “Effective Date” means the occurrence of the effective date of the Plan according to its terms.


 
4 “Entity” shall have the meaning set forth in section 101(15) of the Bankruptcy Code. “Execution Date” has the meaning set forth in the preamble to this Agreement. “Holder” means a Person or Entity holding a Claim against, or an Interest in, the Debtor, as the context requires. “Interest” means equity security (as defined in section 101(16) of the Bankruptcy Code) of the Debtor, including all shares, common stock, preferred stock, or other instrument evidencing any fixed or contingent ownership interest in the Debtor, whether or not transferable, and any option, warrant, or other right, contractual or otherwise, to acquire any such interest in the Debtor, whether fully vested or vesting in the future, including without limitation, equity or equity-based incentives, grants, or other instruments issued, granted, or promised to be grated to current or former employees, directors, officers, or contractors of the Debtor, to acquire any such interest in the Debtor that existed immediately before the Petition Date. “Joinder” means a joinder to this Agreement substantially in the form attached to this Agreement as Exhibit C. “Joinder Party” means any Entity that becomes a Party to this Agreement by executing a Joinder pursuant to the terms of this Agreement. “Law” means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction (including the Bankruptcy Court). “Liquidating Trust” means the liquidating trust established on the Effective Date of the Plan in accordance with Liquidating Trust Agreement and the purposes set forth in the Term Sheet. “Liquidating Trust Agreement” means the agreement governing the Liquidating Trust. “Majority Consenting Noteholders” means, as of the relevant date, Consenting Noteholders holding a majority in face value of the aggregate holdings of the Notes of all Consenting Noteholders. “Milestones” means those milestones to the Transaction set forth in Section 4. “Notes” means the 3.50% Convertible Senior Notes Due 2027 indenture, dated May 22, 2020, by and among Tricida, Inc., as issuer, and U.S. Bank Trust Company, National Association, as trustee. “Noteholder Claims” means Claims held by the Holders of Notes. “November Interest Payment” means the accrued and outstanding November 2022 interest payment due under the Notes in the amount of $3.5 million.


 
5 “Order Approving Bid Procedures” means an order entered by the Court approving the bid procedures and stalking horse protections, if any, set forth in the Sale Motion. “Parties” has the meaning set forth in the preamble to this Agreement. “Patheon Agreements” means the (a) Manufacturing and Commercial Supply Agreement, dated October 4, 2019, by and among Patheon, as supplier, and the Debtor, as purchaser, as such may have been modified, amended, restated, or amended and restated from time to time; (b) the Master Development / Validation Services and Clinical / Launch Supply Agreement, dated May 8, 2018, by and among Tricida and Patheon, as such may have been modified, amended, restated, or amended and restated from time to time; and (c) any other ancillary or supplemental agreements relating to clauses (a) through (b). “Patheon Rejection Claim” means the Claim of Patheon Austria GmbH & Co KG, a subsidiary of Thermo Fisher Scientific, Inc., against the Debtor arising out of the termination or Debtor’s rejection of the Patheon Agreements. “Permitted Transfer” means each transfer of any Debtor Claims/Interests that meets the requirements of Section 8.01. “Permitted Transferee” means each transferee of any Debtor Claims/Interests who meets the requirements of Section 8.01. “Permitted Variance” means the permitted variance of the Chapter 11 Budget, which shall be a permitted cumulative negative variance on operating disbursements, tested on both an individual line-item and total basis calculated on a rolling basis commencing with the fourth week following the Petition Date with such permitted variance equal to fifteen percent (15%) for cumulative weeks four (4) and five (5) following the Petition Date, twelve and a half percent (12.5%) for cumulative weeks six (6) and seven (7) following the Petition Date, and ten percent (10%) for cumulative week eight (8) and thereafter. “Person” has the meaning set forth in section 101(41) of the Bankruptcy Code. “Petition Date” means the date the Debtor commences the Case. “Plan” means the plan of liquidation, including any exhibits and schedules thereto, filed by the Debtor under chapter 11 of the Bankruptcy Code. “Plan and Disclosure Statement Consent Deadline” has the meaning set forth in Section 11.01(c). “Plan Supplement” means the compilation of documents and forms of documents, agreements, schedules, and exhibits to the Plan that will be filed by the Debtor with the Court, including the Liquidating Trust Agreement (in each case, as may be altered, amended, modified, or supplemented from time to time in accordance with this Agreement). “Qualified Bid Deadline” means the deadline for parties to submit bids on the assets being sold pursuant to the Sale Motion.


 
6 “Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers Debtor Claims/Interests (or enter with customers into long and short positions in Debtor Claims/Interests), in its capacity as a dealer or market maker in Debtor Claims/Interests and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt). “Required Objecting Noteholders” means, as of the relevant date, Consenting Noteholders holding two-thirds (66.67%) in face value of the aggregate holdings of the Notes of all Consenting Noteholders. “Rules” means Rule 501(a)(l), (2), (3), and (7) of the Securities Act. “Sale Motion” means the motion seeking approval of the Sale Transaction and providing for certain stalking horse protections, if applicable, along with any sale, bidding, or notice procedures required in connection thereto. “Sale Order” means an order entered by the Court approving the Sale Motion and consummation of the Sale Transaction. “Sale Transaction” means the sale of all or substantially all of the Debtor’s assets under section 363 of the Bankruptcy Code. “SEC” means the Securities and Exchange Commission. “Securities Act” means the Securities Act of 1933, as amended. “Solicitation Materials” means all solicitation materials in respect of the Plan, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement. “Term Sheet” has the meaning set forth in the recitals to this Agreement. “Termination Date” means the date on which termination of this Agreement as to a Party is effective in accordance with Sections 11.01, 11.02, 11.03, or 11.04. “Transaction” has the meaning set forth in the recitals to this Agreement. “Transfer” means to sell, resell, reallocate, pledge, assign, transfer, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales or other transactions); provided, however, that any pledge in favor of (a) a bank or broker dealer at which a Consenting Noteholder maintains an account, where such bank or broker dealer holds a security interest or other encumbrance over property in the account generally or (b) any lender, agent or trustee to secure obligations generally under debt issued by the applicable fund or account, in each case shall not be deemed a “Transfer” for any purposes hereunder.


 
7 “Transfer Agreement” means an executed form of the transfer agreement providing, among other things, that a transferee is bound by the terms of this Agreement and substantially in the form attached hereto as Exhibit B. “Trustee” means U.S. Bank Trust Company, National Association in its role as trustee under the Notes, including any successors thereto. “United States Trustee” means the Office of the United States Trustee for the District of Delaware. 1.02. Interpretation. For purposes of this Agreement: (a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (b) capitalized terms defined only in the plural or singular form shall nonetheless have their defined meanings when used in the opposite form; (c) unless otherwise specified, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (d) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit shall mean such document, schedule, or exhibit, as it may have been or may be amended, restated, supplemented, or otherwise modified from time to time; provided that any capitalized terms herein which are defined with reference to another agreement, are defined with reference to such other agreement as of the date of this Agreement, without giving effect to any termination of such other agreement or amendments to such capitalized terms in any such other agreement following the date hereof; (e) unless otherwise specified, all references herein to “Sections” are references to Sections of this Agreement; (f) the words “herein,” “hereof,” and “hereto” refer to this Agreement in its entirety rather than to any particular portion of this Agreement; (g) captions and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Agreement; (h) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable limited liability company Laws; (i) the use of “include” or “including” is without limitation, whether stated or not; and


 
8 (j) the phrase “counsel to the Consenting Noteholders” refers in this Agreement to each counsel specified in Section 13.10 other than counsel to the Debtor. Section 2. Effectiveness of this Agreement. This Agreement shall become effective and binding upon each of the Parties at 12:00 a.m., prevailing Eastern Standard Time, on the Agreement Effective Date, which is the date on which all of the following conditions have been satisfied or waived in accordance with this Agreement: (a) the Debtor shall have executed and delivered a counterpart signature page of this Agreement to counsel to the Consenting Noteholders; (b) the Holders of at least two-thirds of the aggregate outstanding principal amount of the Notes shall have executed and delivered counterpart signature pages of this Agreement to counsel to the Debtor; (c) counsel to the Debtor shall have given notice to counsel to the Consenting Noteholders and the Trustee in the manner set forth in Section 13.10 hereof (by email or otherwise) that the conditions to the Agreement Effective Date set forth in this Section 2 have occurred; (d) the Debtor shall have paid all Consenting Noteholder Fees and Expenses that are due and payable as of the Agreement Effective Date; provided, however, that the Debtor shall have received an invoice for such Consenting Noteholder Fees and Expenses at least one (1) Business Day prior to the Agreement Effective Date. Section 3. Definitive Documents. 3.01. The Definitive Documents governing the Transaction shall include the following: (a) the Sale Motion; (b) the Order Approving Bid Procedures; (c) the Sale Order; (d) any definitive documentation, including any purchase agreement, related to a Sale Transaction; (e) the Disclosure Statement; (f) the order of the Court approving the Disclosure Statement; (g) the Plan, including any Plan Supplement; (h) the Confirmation Order and any pleadings in support of entry thereof; and (i) the Liquidating Trust Agreement. 3.02. The Definitive Documents not executed or in a form attached to this Agreement as of the Execution Date remain subject to negotiation and completion. Upon completion, the Definitive Documents and every other document, deed, agreement, filing, notification, letter or instrument related to the Transaction shall contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement (as it may be modified, amended, or supplemented in accordance with Section 12) and shall be in form and substance reasonably acceptable to the Debtor and the Majority Consenting Noteholders. Section 4. Milestones. 4.01. The Debtor shall implement the Transaction in accordance with the following Milestones (which, to the extent such date (including any extension thereof), does not consist of a date certain, shall be calculated under Rule 9006 of the Federal Rules of Bankruptcy Procedure)


 
9 unless extended in writing (email from counsel to the Consenting Noteholders being sufficient) by the Majority Consenting Noteholders: (a) by no later than January 16, 2023, the Debtor shall file the Case seeking relief under chapter 11 of the Bankruptcy Code; (b) on the Petition Date, the Debtor shall also file a Sale Motion; (c) by no later than seven (7) days following the Petition Date, the Debtor shall file a Plan and Disclosure Statement, along with a motion for approval of the same; (d) by no later than thirty-one (31) days following the Petition Date, the Court shall have entered an Order Approving Bid Procedures; (e) the Qualified Bid Deadline shall be no later than thirty-four (34) days following the Petition Date; (f) the Debtor, in consultation with the Consenting Noteholders, shall select the highest and best bid from amongst the bids received within one (1) day following the Qualified Bid Deadline; (g) if multiple bids are received, the Debtor shall conduct the Auction by no later than forty (40) days following the Petition Date; (h) by no later than forty (40) days following the filing of the Plan and Disclosure Statement, the Court shall have entered an order approving the Disclosure Statement; (i) by no later than forty-five (45) days following the Petition Date, the Court shall have entered a Sale Order; (j) by no later than fifty-five (55) days following the Petition Date, the Sale Transaction shall close; (k) by no later than eighty (80) days following the filing of the Plan and Disclosure Statement, the Court shall have entered a Confirmation Order; and (l) the Effective Date shall occur by no later than April 14, 2023. 4.02. A Milestone may only be extended or waived with the prior written consent (email being sufficient) of the Debtor and the Majority Consenting Noteholders. Section 5. Commitments of the Consenting Noteholders.General Commitments, Forbearances, and Waivers. (a) During the Agreement Effective Period, subject to the terms and conditions of this Agreement, each Consenting Noteholder agrees, severally, and not jointly, in respect of all of its Debtor Claims/Interests, to:


 
10 (i) support the Transaction and vote and act in good faith and take all actions (to the extent practicable and subject to the terms hereof) reasonably necessary to implement the Transaction; (ii) use commercially reasonable efforts to oppose any party or person from taking any actions contemplated in Section 5.02(b); (iii) give any notice, order, instruction, or direction to the Trustee necessary to give effect to the Transaction; and (iv) negotiate in good faith and use commercially reasonable efforts to execute (where applicable) and implement the Definitive Documents that are consistent with this Agreement and the Term Sheet to which it is required to be a party. (b) During the Agreement Effective Period, each Consenting Noteholder agrees, severally, and not jointly, in respect of all of its Debtor Claims/Interests, that it shall not directly or indirectly: (i) object to, or take any other action that would reasonably be expected to delay, impede, interfere with acceptance, implementation, or consummation of the Transaction; (ii) propose, file, knowingly support, or vote for any Alternative Restructuring Proposal; (iii) file any motion, pleading, or other document with the Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is materially inconsistent with this Agreement, the Term Sheet, or the Plan; (iv) initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Case, this Agreement, or the other Transaction contemplated herein against the Debtor other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement; (v) exercise, or direct any other person to exercise on its behalf, any right or remedy for the enforcement, collection, or recovery of any of Claims against or Interests in the Debtor in a manner materially inconsistent with the other terms of this Agreement; or (vi) object to, or take any other action that would reasonably be expected to (1) delay, impede, or interfere with the Debtor’s ownership and possession of their assets, wherever located; or (2) interfere with the automatic stay arising under section 362 of the Bankruptcy Code. 5.02. Commitments with Respect to the Case. (a) During the Agreement Effective Period, each Consenting Noteholder that is entitled to vote to accept or reject the Plan pursuant to its terms, severally, and not jointly, agrees that it shall, subject to receipt by such Consenting Noteholder of the Solicitation Materials:


 
11 (i) vote each of its Debtor Claims/Interests to accept the Plan by delivering its duly executed and completed ballot accepting the Plan following the commencement of the solicitation of the Plan and its actual receipt of the Solicitation Materials and the ballot and prior to the deadline for such delivery; (ii) to the extent it is permitted to elect whether to opt out of the releases set forth in the Plan, elect not to opt out of the releases set forth in the Plan by delivering its duly executed and completed ballot(s) indicating such election prior to the deadline for such delivery; and (iii) not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to in clauses (i) and (ii) above; provided, however, that such vote or election may be revoked or withdrawn (and, upon such revocation or withdrawal, deemed void ab initio) by such Consenting Noteholder in the event this Agreement is terminated in accordance with Section 11 herein. (b) During the Agreement Effective Period, each Consenting Noteholder, in respect of each of its Debtor Claims/Interests, will (i) support and not object to any motion or other pleading or document filed by the Debtor in the Court that is consistent with this Agreement, and (ii) will not take any other action, directly or indirectly, that would reasonably be expected to delay, impede, or take any other action to interfere with any motion or other pleading or document filed by the Debtor in the Court that is consistent with this Agreement. 5.03. Additional Provisions Regarding the Consenting Noteholders’ Commitments. Notwithstanding anything contained in this Agreement, nothing in this Agreement and neither a vote to accept the Plan by a Consenting Noteholder nor the acceptance of the Plan by any Consenting Noteholder, shall: (a) be construed to prohibit any Consenting Noteholder from enforcing this Agreement or any Definitive Document, or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement or the Definitive Documents, or exercising its rights or remedies reserved herein or in the Definitive Documents; (b) be construed to prohibit or limit any Consenting Noteholder from appearing as a party in interest in any matter to be adjudicated concerning any matter arising in the Chapter 11 Cases, so long as, during the Agreement Effective Period, the exercise of such right is not materially inconsistent with this Agreement or such Consenting Noteholder’s obligations hereunder; and (c) affect the ability of any Consenting Noteholder to consult with any other Consenting Noteholder, the Debtor, or any other party in interest in the Case (including any official committee and the United States Trustee);


 
12 Section 6. Commitments of the Debtor. 6.01. Affirmative Commitments. Except as set forth in Section 6, during the Agreement Effective Period, the Debtor agrees to: (a) support and take all steps reasonably necessary and desirable to consummate the Transaction in accordance with this Agreement and the Term Sheet; (b) comply with each Milestone; (c) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction contemplated herein, take all commercially reasonable steps necessary and desirable to address any such impediment; (d) as reasonably requested by the Majority Consenting Noteholders, cause advisors of the Debtor to inform and/or confer with the counsel to the Consenting Noteholders as to: (i) the status and progress of the Transaction, including, without limitation, progress in relation to the negotiations of the Definitive Documents; (ii) the status of obtaining any necessary or desirable authorizations (including any consents) with respect to the Transaction from any competent judicial body, governmental authority, banking, taxation, supervisory, or regulatory body or any stock exchange; (iii) operational and financial performance matters (including liquidity), contract and lease matters, and the general status of ongoing operations; and, in the foregoing case (iii), provide timely and reasonable responses to all reasonable diligence requests with respect to the foregoing, subject to any applicable restrictions and limitations set forth in any Confidentiality Agreements then in effect; (e) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Transaction; (f) negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Transaction as contemplated by this Agreement and the Term Sheet; (g) timely file a formal objection to any motion filed with the Bankruptcy Court by any person seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code); (ii) converting the Chapter 11 Case to a case under chapter 7 of the Bankruptcy Code; (iii) dismissing the Chapter 11 Case; or (iv) for relief that (y) is inconsistent with this Agreement in any material respect or (z) would reasonably be expected to frustrate the purpose of this Agreement, including by preventing consummation of the Transaction; (h) promptly (but in any event within three (3) Business Days) notify counsel to the Consenting Noteholders in writing of the occurrence, or failure to occur, of any event of which the Debtors have actual knowledge and which such occurrence or failure would likely cause (i) any representation of the Debtor contained in this Agreement to be untrue or inaccurate in any material respect; (ii) any covenant of the Debtor contained in this Agreement not to be satisfied in any material respect; or (iii) any condition precedent contained in the Plan related to the obligations of the Debtor not to occur or become impossible to satisfy; and


 
13 (i) provide counsel for the Consenting Noteholders a weekly Chapter 11 Budget variance report that is in a form reasonably satisfactory to the Majority Consenting Noteholders. 6.02. Negative Commitments. Except as set forth in Section 6, during the Agreement Effective Period, the Debtor shall not directly or indirectly: (a) object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Transaction or take any other action barred by this Agreement; (b) subject to Section 11.02(d) of this Agreement, seek, solicit, encourage, propose, assist, consent to, vote for, engage in substantive negotiations, or enter into any agreement in connection with or regarding, or participate in the formulation or preparation of any Alternative Restructuring Proposal; (c) take any action that is inconsistent in any material respect with, or is intended to frustrate or impede approval, implementation and consummation of the Transaction described in, this Agreement, the Term Sheet, or the Plan; (d) modify the Plan, in whole or in part, in a manner that is not consistent with this Agreement or the Term Sheet in any material respects; (e) propose or pursue a settlement of the Patheon Rejection Claim without the consent of the Majority Consenting Noteholders; or (f) file any motion, pleading, or Definitive Documents with the Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement, the Term Sheet, or the Plan. 6.03. Interest, Fees, and Expenses. With respect to the interest, fees, and expenses of the Consenting Noteholders, the Debtor agrees: (a) prior to filing the voluntary petition commencing the Case, to pay all Consenting Noteholder Fees and Expenses incurred and invoiced prior to the Petition Date; (b) prior to filing the voluntary petition commencing the Case, to pay the November Interest Payment, in full and final satisfaction of all amounts due and owing pursuant to that outstanding November Interest Payment; and (c) provided that this Agreement has not been terminated pursuant to Section 11 before entry of the Confirmation Order, to use reasonable best efforts to obtain approval from the Court to pay any postpetition Consenting Noteholder Fees and Expenses. Section 7. Additional Provisions Regarding Fiduciary Obligations. 7.01. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require the Debtor or the board of directors of the Debtor, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Transaction to


 
14 the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this Section 7.01 shall not be deemed to constitute a breach of this Agreement; provided, it is agreed that any such action that results in a termination of this Agreement in accordance with the terms hereof shall be subject to the provisions set forth in Section 11.05 hereof. 7.02. Notwithstanding anything to the contrary in this Agreement (but subject to Section 7.01), the Debtor and its directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the right to: (a) consider, respond to, and facilitate Alternative Restructuring Proposals; (b) provide access to non-public information concerning the Debtor to any Entity or enter into Confidentiality Agreements or nondisclosure agreements with any Entity; (c) maintain or continue discussions or negotiations with respect to Alternative Restructuring Proposals; (d) otherwise cooperate with, assist, participate in, or facilitate by any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; and enter into or continue discussions or negotiations with holders of Claims against or Interests in the Debtor (including any Consenting Noteholder), any other party in interest in the Case (including any official committee and the United States Trustee), or any other Person or Entity regarding the Transaction or any Alternative Restructuring Proposal. If the Debtor receives an Alternative Restructuring Proposal, then the Debtor shall, within one (1) Business Day of receiving such proposal, provide counsel to the Consenting Noteholders a reasonably detailed summary of such Alternative Restructuring Proposal, including the identity of the person or group of persons involved and reasonable updates as to the status and progress of such Alternative Restructuring Proposal, and the Debtor shall respond promptly to reasonable information requests and questions from counsel to the Consenting Noteholders relating to such Alternative Restructuring Proposal. 7.03. Nothing in this Agreement shall: (a) impair or waive the rights of the Debtor to assert or raise any objection permitted under this Agreement in connection with the Transaction; or (b) prevent the Debtor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement. Section 8. Transfer of Interests and Securities. 8.01. Subject to Section 8.02, during the Agreement Effective Period, no Consenting Noteholder shall Transfer any ownership (including any beneficial ownership as defined in the Rule 13d-3 under the Securities Exchange Act of 1934, as amended) in any Debtor Claims/Interests to any affiliated or unaffiliated party, including any party in which it may hold a direct or indirect beneficial interest, unless: (a) in the case of any Debtor Claims/Interests, the authorized transferee is either (i) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (ii) a non-U.S. person in an offshore transaction as defined under Regulation S under the Securities Act, (iii) an institutional accredited investor (as defined in the Rules), or (iv) a Consenting Noteholder; and (b) either (i) the transferee executes and delivers to counsel to the Debtor and counsel to the Consenting Noteholders, at or before the time of the proposed Transfer, a Transfer Agreement or (ii) the transferee is a Consenting Noteholder or an affiliate thereof and the


 
15 transferee provides notice of such Transfer (including the amount and type of Debtor Claim/Interest transferred) to counsel to the Debtor and counsel to the Consenting Noteholders by close of business three (3) Business Days following such Transfer. 8.02. Notwithstanding the foregoing, the limitations under Section 8.01 shall not apply to any Transfer on a national securities exchange or over the counter market of any equity Interest acquired by any Consenting Noteholder on a national securities exchange or over the counter market. 8.03. Upon compliance with the requirements of Section 8.01, the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of the rights and obligations in respect of such transferred Debtor Claims/Interests. Any Transfer in violation of Section 8.01 shall be void ab initio. 8.04. This Agreement shall in no way be construed to preclude the Consenting Noteholders from acquiring additional Debtor Claims/Interests; provided, however, that (a) such additional Debtor Claims/Interests shall automatically and immediately upon acquisition by a Consenting Noteholder be deemed subject to the terms of this Agreement (regardless of when or whether notice of such acquisition is given to counsel to the Debtor or counsel to the Consenting Noteholders) and (b) such Consenting Noteholder must provide notice of such acquisition (including the amount and type of Debtor Claim/Interest acquired) to counsel to the Debtor and counsel to the Consenting Noteholders within five (5) Business Days of such acquisition. 8.05. This Section 8 shall not impose any obligation on the Debtor to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling a Consenting Noteholder to Transfer any of its Debtor Claims/Interests. Notwithstanding anything to the contrary herein, to the extent the Debtor and another Party have entered into a Confidentiality Agreement, the terms of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations otherwise arising under such Confidentiality Agreements. 8.06. Notwithstanding Section 8.01, any Consenting Noteholder may Transfer any Debtor Claim/Interests to a Qualified Marketmaker, and a Qualified Marketmaker that acquires any Debtor Claims/Interests with the purpose and intent of acting as a Qualified Marketmaker for such Debtor Claims/Interests shall not be required to execute and deliver a Transfer Agreement in respect of such Debtor Claims/Interests if (a) such Qualified Marketmaker subsequently transfers such Debtor Claims/Interests (by purchase, sale assignment, participation, or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor; (b) the transferee otherwise is a Permitted Transferee under Section 8.01; and (c) the Transfer otherwise is a Permitted Transfer under Section 8.01. To the extent that a Consenting Noteholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise) any right, title or interests in Debtor Claims/Interests that the Qualified Marketmaker


 
16 acquires from a holder of the Debtor Claims/Interests who is not a Consenting Noteholder without the requirement that the transferee be a Permitted Transferee. 8.07. Notwithstanding anything to the contrary in this Section 8, the restrictions on Transfer set forth in this Section 8 shall not apply to the grant of any liens or encumbrances on any claims and interests in favor of a bank or broker-dealer holding custody of such claims and interests in the ordinary course of business and which lien or encumbrance is released upon the Transfer of such claims and interests. Section 9. Representations and Warranties of Consenting Noteholders. Each Consenting Noteholder severally, and not jointly, represents and warrants that, as of the date such Consenting Noteholder executes and delivers this Agreement: (a) it is the beneficial or record owner of the face amount of the Debtor Claims/Interests or is the nominee, investment manager, or advisor for beneficial holders of the Debtor Claims/Interests reflected in, and, having made reasonable inquiry, is not the beneficial or record owner of any Debtor Claims/Interests other than those reflected in, such Consenting Noteholder’s signature page to this Agreement or a Transfer Agreement, as applicable (as may be updated pursuant to Section 8); (b) it has the full power and authority to act on behalf of, vote and consent to matters concerning, such Debtor Claims/Interests; (c) such Debtor Claims/Interests are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition, transfer, or encumbrances of any kind, that would materially and adversely affect in any way such Consenting Noteholder’s ability to perform any of its obligations under this Agreement at the time such obligations are required to be performed; (d) it has the full power to vote, approve changes to, and transfer all of its Debtor Claims/Interests referable to it as contemplated by this Agreement subject to applicable Law; and (e) (i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (B) not a U.S. person (as defined in Regulation S of the Securities Act), or (C) an institutional accredited investor (as defined in the Rules), and (ii) any securities acquired by the Consenting Noteholder in connection with the Transaction will have been acquired for investment and not with a view to distribution or resale in violation of the Securities Act. Section 10. Mutual Representations, Warranties, and Covenants. Each of the Parties severally, and not jointly, represents, warrants, and covenants to each other Party, as of the date such Party executes and delivers this Agreement: (a) it is validly existing and in good standing under the Laws of the state of its organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;


 
17 (b) except as (i) expressly provided in this Agreement, the Term Sheet, the Sale Motion, the Order Approving Bid Procedures, the Sale Order, the Plan, and the Bankruptcy Code, or (ii) as may be necessary and/or required by the SEC or other securities regulatory authorities under applicable securities laws, no material registration or filing with, consent or approval, or notice to, or other action, with or by, any federal, state or governmental authority or regulatory body is required in order for it to effectuate the Transaction contemplated by, and perform its respective obligations under, this Agreement; (c) the entry into and performance by it of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association or other constitutional documents; (d) except as expressly provided in this Agreement, it has (or will have, at the relevant time) all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement and to effectuate the Transaction contemplated by, and perform its respective obligations under, this Agreement; and (e) except as expressly provided by this Agreement, it is not party to any restructuring or similar agreements or arrangements with the other Parties to this Agreement that have not been disclosed to all Parties to this Agreement. Section 11. Termination Events. 11.01. Consenting Noteholder Termination Events. This Agreement may be terminated by the Majority Consenting Noteholders by the delivery to the Debtor of a written notice in accordance with Section 13.10 hereof upon the occurrence of any of the following events: (a) the failure of the Debtor to achieve any of the Milestones set forth in Section 4.01; provided that such failure remains uncured for five (5) Business Days after counsel to the Consenting Noteholders provided a written notice in accordance with Section 13.10 hereof detailing such failure; (b) the failure of the Debtor to adhere to the Chapter 11 Budget, subject to the Permitted Variance; (c) on or before the date that is thirty (30) days following the Petition Date (the “Plan and Disclosure Statement Consent Deadline”), counsel to the Consenting Noteholders provides notice to the Debtor that the Required Objecting Noteholders have reasonably determined in good faith that the Plan and Disclosure Statement, as each may be amended from time to time after filing, (i) are inconsistent with the terms of this Agreement and the Term Sheet or (ii) if not addressed in this Agreement or the Term Sheet, otherwise adversely affects the Consenting Noteholders or the Noteholder Claims in any material respect; provided that such notice shall specify the basis of such determination and such material and adverse inconsistency shall remain uncured for five (5) Business Days after counsel to the Consenting Noteholders provides a written notice in accordance with Section 13.10 hereof detailing such material and adverse inconsistency;


 
18 (d) the Debtor amends the Plan or the Disclosure Statement in a manner materially adverse to the Consenting Noteholders following the Plan and Disclosure Statement Consent Deadline and such amendment is objected to by the Required Objecting Noteholders by a written notice in accordance with Section 13.10 hereof; (e) the Debtor’s proposal or pursuit of a settlement of the Patheon Rejection Claim prior to the Effective Date without the consent of the Majority Consenting Noteholders, such consent not to be unreasonably withheld; (f) the breach in any material respect by the Debtor of any of the representations, warranties, or covenants of the Debtor set forth in this Agreement that (i) is adverse to the Consenting Noteholders; and (ii) remains uncured for five (5) Business Days after counsel to the Consenting Noteholders provides a written notice in accordance with Section 13.10 hereof detailing any such breach; (g) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Transaction; and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting Noteholders transmit a written notice in accordance with Section 13.10 hereof detailing any such issuance; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement; (h) the Bankruptcy Court enters an order denying confirmation of the Plan; or (i) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by the Debtor seeking an order (without the prior written consent of the Majority Consenting Noteholders) (i) converting the Case to a case under chapter 7 of the Bankruptcy Code; (ii) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in the Case; (iii) dismissing the Case; or (iv) rejecting this Agreement. 11.02. Debtor Termination Events. This Agreement may be terminated by the Debtor upon prior written notice to counsel to the Consenting Noteholders in accordance with Section 13.10 hereof upon the occurrence of any of the following events: (a) the Debtor receives notice on or before the Plan and Disclosure Statement Consent Deadline that the Required Objecting Noteholders have reasonably determined in good faith that the Plan and Disclosure Statement, as each may be amended from time to time after filing, (i) are inconsistent with the terms of this Agreement and the Term Sheet or (ii) if not addressed in this Agreement or the Term Sheet, otherwise adversely affects the Consenting Noteholders or the Noteholder Claims in any material respect; (b) the breach in any material respect by one or more of the Consenting Noteholders holding an amount of Notes’ Claims that would result in non-breaching Consenting Noteholders holding less than two-thirds (66.67%) of the aggregate outstanding principal amount of Notes’


 
19 Claims that remains uncured for a period of fifteen (15) Business Days after receipt by counsel to the Consenting Noteholders of a written notice of breach provided in accordance with Section 13.10 hereof that details such breach; (c) the failure of the Consenting Noteholders to constitute Holders (or investment advisors, sub-advisors, or managers of discretionary accounts of holders) of, in the aggregate, at least two-thirds of the aggregate outstanding principal amount of the Notes; (d) the board of directors or such similar governing body of the Debtor determines in good faith, after consulting with counsel (i) that proceeding with the Transaction would be inconsistent with the exercise of its fiduciary duties or its compliance with applicable law; or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal; (e) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Transaction and (ii) remains in effect for thirty (30) Business Days after the Debtor transmits a written notice in accordance with Section 13.10 hereof detailing any such issuance; provided, that this termination right shall not apply to or be exercised by the Debtor if it sought or requested such ruling or order in contravention of any obligation or restriction set out in this Agreement; or (f) the Bankruptcy Court enters an order denying confirmation of the Plan. 11.03. Mutual Termination. This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual written agreement among all of the following: (a) the Debtor; and (b) the Majority Consenting Noteholders. 11.04. Automatic Termination. This Agreement shall terminate automatically without any further required action or notice immediately upon the earlier of: (a) the Debtor (i) notifying the Consenting Noteholders and/or making a public announcement that they intend to pursue an Alternative Restructuring Proposal; or (ii) entering into a definitive agreement with respect to an Alternative Restructuring Proposal; (b) on the date that is 120 days after the Petition Date; or (c) the Effective Date of the Plan. 11.05. Effect of Termination. Upon the occurrence of a Termination Date, this Agreement shall be of no further force and effect and each Party shall be released from its liabilities, obligations, commitments, undertakings, and agreements under or related to this Agreement, shall have no further rights, benefits or privileges hereunder, shall have all the rights and remedies that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Transaction or otherwise, that it would have been entitled to take had it not entered into this Agreement, including with respect to any and all Claims or Causes of Action; provided, that in no event shall any such termination relieve a Party from (i) liability for its breach or non-performance of its obligations hereunder before the Termination Date and (ii) obligations under this Agreement which expressly survive any such termination pursuant to


 
20 Section 13 hereunder. Upon the occurrence of a Termination Date, any and all consents or ballots tendered by the Parties subject to such termination before a Termination Date shall be deemed, for all purposes, to be null and void from the first instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Transaction and this Agreement or otherwise. Nothing in this Agreement shall be construed as prohibiting the Debtor or any of the Consenting Noteholders from contesting whether any such termination is in accordance with its terms or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict (a) any right of the Debtor or the ability of the Debtor to protect and reserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Consenting Noteholder, and (b) any right of any Consenting Noteholder, or the ability of any Consenting Noteholder, to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its Claims against the Debtor. Notwithstanding any provision to the contrary in this Section 11, no Party may exercise any of its respective termination rights as set forth herein if such Party is in material breach of this Agreement. Nothing in this Section 11.05 shall restrict the Debtor’s right to terminate this Agreement in accordance with Section 11.02(d) or 11.02(e). Section 12. Amendments and Waivers. (a) This Agreement may not be modified, amended, or supplemented, and no condition or requirement of this Agreement may be waived, in any manner except in accordance with this Section 12. (b) This Agreement may be modified, amended, or supplemented, or a condition or requirement of this Agreement may be waived, in a writing signed by: (i) the Debtor and the Majority Consenting Noteholders; and (ii) solely with respect to any modification, amendment, waiver, or supplement that materially, adversely, and disproportionately affects the rights of the Debtor Claims/Interests held by a Consenting Noteholder, the affected Consenting Noteholder; provided that any amendment to the definition of “Majority Consenting Noteholders,” under this Section 12 shall require consent of each Consenting Noteholder. Any consent required to be provided pursuant to this Section 12 may be delivered by email from counsel. (c) Any proposed modification, amendment, waiver or supplement that does not comply with this Section 12 shall be ineffective and void ab initio. (d) The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy or any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law.


 
21 Section 13. Miscellaneous. 13.01. Acknowledgement. Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise. Any such offer or solicitation will be made only in compliance with all applicable securities Laws, provisions of the Bankruptcy Code, and/or other applicable Law. 13.02. Exhibits Incorporated by Reference; Conflicts. Each of the exhibits, annexes, signatures pages, and schedules attached hereto is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include such exhibits, annexes, and schedules. In the event of any inconsistency between this Agreement (without reference to the exhibits, annexes, and schedules hereto) and the exhibits, annexes, and schedules hereto, this Agreement (without reference to the exhibits, annexes, and schedules thereto) shall govern; provided that in the event the terms and conditions set forth in the Term Sheet and in this Agreement are inconsistent, the Term Sheet shall control. 13.03. Further Assurances. Subject to the other terms of this Agreement, the Parties agree to use their commercially reasonable efforts to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, or as may be required by order of the Court, from time to time, to effectuate the Transaction, as applicable. 13.04. Complete Agreement. Except as otherwise explicitly provided herein, this Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, among the Parties with respect thereto, other than any Confidentiality Agreement. 13.05. GOVERNING LAW; SUBMISSION TO JURISDICTION: SELECTION OF FORUM. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible, in the Court, and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Court; (b) waives any objection to laying venue in any such action or proceeding in the Court; and (c) waives any objection that the Court is an inconvenient forum or does not have jurisdiction over any Party hereto. 13.06. TRIAL BY JURY WAIVER. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING


 
22 ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY. 13.07. Execution of Agreement. This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement. Except as expressly provided in this Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party. 13.08. Rules of Construction. This Agreement is the product of negotiations among the Debtor and the Consenting Noteholders, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof. The Debtor and the Consenting Noteholders were each represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel. 13.09. Successors and Assigns; Third Parties. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors and permitted assigns, as applicable. There are no third party beneficiaries under this Agreement except as set forth in the Section 8, and the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other person or entity except as set forth in Section 8. 13.10. Notices. All notices hereunder shall be deemed given if in writing and delivered, by electronic mail, courier, or registered or certified mail (return receipt requested), to the following addresses (or at such other addresses as shall be specified by like notice): (a) if to the Debtor, to: Tricida, Inc. 7000 Shoreline Court, Suite 201 South San Francisco, CA 94080 Attention: Bob McKague, Executive Vice President, General Counsel, & Chief Compliance Officer E-mail address: bmckague@tricida.com with copies to: Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Attention: Geoff Levin and Sam Newman Email: glevin@sidley.com, sam.newman@sidley.com (b) if to a Consenting Noteholder, to: Davis Polk & Wardwell LLP


 
23 450 Lexington Avenue New York, New York 10017 Attention: Darren Klein and Abraham Bane Email: darren.klein@davispolk.com, abraham.bane@davispolk.com (c) if to the Trustee, to: Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 Attention: Darren Klein and Abraham Bane Email: darren.klein@davispolk.com, abraham.bane@davispolk.com & Greenberg Traurig, LLP 90 South 7th Street, Suite 3500 Minneapolis, MN 55402 Attention: Michael Fisco and Whitney Mark Email: mfisco@gtlaw.com, whitney.mark@gtlaw.com & U.S. Bank Trust Company, National Association 60 Livingston Avenue Saint Paul, MN 55107 EP-MN-WS1D Attention: Ian Bell Email: ian.bell@usbank.com Any notice given by delivery, mail, or courier shall be effective when received. 13.11. Independent Due Diligence and Decision Making. Each Consenting Noteholder hereby confirms that its decision to execute this Agreement has been based upon its independent investigation of the operations, businesses, financial and other conditions, and prospects of the Debtor. 13.12. Enforceability of Agreement. Each of the Parties to the extent enforceable waives any right to assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, to the extent the Court determines that such relief is required. 13.13. Waiver. If the Transaction is not consummated, or if this Agreement is terminated for any reason, the Parties fully reserve any and all of their rights. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations


 
24 relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms or the payment of damages to which a Party may be entitled under this Agreement. 13.14. Specific Performance. It is understood and agreed by the Parties that money damages would be an insufficient remedy for any breach of this Agreement by any Party, and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy of any such breach, including an order of the Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. 13.15. Several, Not Joint, Claims. Except where otherwise specified, the agreements, representations, warranties, and obligations of the Parties under this Agreement are, in all respects, several and not joint. 13.16. Severability and Construction. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable. 13.17. Remedies Cumulative. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at Law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party. 13.18. Capacities of Consenting Noteholders. Each Consenting Noteholder has entered into this agreement on account of all Debtor Claims/Interests that it holds (directly or through discretionary accounts that it manages or advises) and, except where otherwise specified in this Agreement, shall take or refrain from taking all actions that it is obligated to take or refrain from taking under this Agreement with respect to all such Debtor Claims/Interests. 13.19. Relationship Among Parties. Notwithstanding anything herein to the contrary, (a) the duties and obligations of the Parties under this Agreement shall be several, not joint; (b) no Party shall have any responsibility by virtue of this Agreement for any trading by any other entity; (c) no prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this Agreement; (d) the Parties hereto acknowledge that this agreement does not constitute an agreement, arrangement, or understanding with respect to acting together for the purpose of acquiring, holding, voting, or disposing of any equity securities of the Debtor and the Parties do not constitute a “group” within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended; and (e) none of the Parties shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities in any kind or form to each other, the Debtor or any of the Debtor’s other creditors or stakeholders, including as a result of this Agreement or the transactions contemplated here. 13.20. Survival. Notwithstanding (a) any Transfer of any Debtor Claims/Interests in accordance with this Agreement or (b) the termination of this Agreement in accordance with its terms, the agreements and obligations of the Parties in this Section 13 and the Confidentiality


 
25 Agreements shall survive such Transfer and/or termination and shall continue in full force and effect for the benefit of the Parties in accordance with the terms hereof and thereof. 13.21. The Debtor shall submit drafts to counsel to the Consenting Noteholders of any press releases and public documents that constitute disclosure of the existence or terms of this Agreement or any amendment to the terms of this Agreement prior to making any such disclosure, and shall afford them a reasonable opportunity under the circumstances to comment on such documents and disclosures and shall incorporate any such reasonable comments in good faith. Except as required by Law, no Party or its advisors shall (a) use the name of any Consenting Noteholders in any public manner (including in any press release) with respect to this Agreement, the Transaction, or any of the Definitive Documents; or (b) disclose to any Entity (including, for the avoidance of doubt, any other Consenting Noteholder), other than advisors to Debtor, (i) the principal amount or percentage of any Debtor Claims/Interests held by any Consenting Noteholders without such Consenting Noteholder’s prior written consent (it being understood and agreed that each Consenting Noteholder’s signature page to this Agreement shall be redacted to remove the name of such Consenting Noteholder and the amount and/or percentage of Debtor Claims/Interests held by such Consenting Noteholder to the extent this Agreement is filed on the docket maintained in the Chapter 11 Case or otherwise made publicly available); provided, however, that (x) if such disclosure is required by Law, the disclosing Party shall afford the relevant Consenting Noteholder a reasonable opportunity to review and comment in advance of such disclosure and the Debtor shall take all reasonable measures to limit such disclosure; and (y) the foregoing shall not prohibit the disclosure of the aggregate percentage or aggregate principal amount of Debtor Claims/Interests held by the Consenting Noteholders of the same class, collectively. Notwithstanding the provisions in this Section 13.21, (a) any Party may disclose the identities of the other Parties in any action to enforce this Agreement or in any action for damages as a result of any breaches hereof; and (b) any Party may disclose, to the extent expressly consented to in writing in advance by a Consenting Noteholder, such Consenting Noteholder’s identity and individual holdings. 13.22. Email Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this Agreement, including a written approval by the Debtor or the Majority Consenting Noteholders, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic mail) between each such counsel without representations or warranties of any kind on behalf of such counsel. IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.


 
[Debtor’s Signature Page to Restructuring Support Agreement] TRICIDA, INC. By: /s/ Bob McKague Name: Bob McKague Title: Executive Vice President, General Counsel, & Chief Compliance Officer Date: 1/11/2023


 
[Consenting Noteholder’s Signature Page to Restructuring Support Agreement] By: Name: Title: Date: Aggregate Principal Amount of Notes


 


 
[Consenting Noteholder’s Signature Page to Restructuring Support Agreement] By: Name: Title: Date: Aggregate Principal Amount of Notes: $


 


 


 


 


 
By: Nam Title: Date: Aggregate Principal Amount of Notes:


 
[Consenting Noteholder’s Signature Page to Restructuring Support Agreement] Title: Date: Aggregate Principal Amount of Notes: DocuSign Envelope ID: 9867DFCF-11E9-4B51-8697-B33A89983581


 


 


 


 


 
EXHIBIT A Restructuring Term Sheet


 
TRICIDA, INC. RESTRUCTURING TERM SHEET THIS TERM SHEET (THIS “TERM SHEET”) DESCRIBES A PROPOSED TRANSACTION (THE “TRANSACTION”) FOR TRICIDA, INC. (THE “DEBTOR”) PURSUANT TO BOTH A PLAN OF LIQUIDATION, WHICH WOULD BE FILED BY THE DEBTOR IN CONNECTION WITH A CONTEMPLATED CHAPTER 11 FILING (THE “CASE”) IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE (THE “COURT”) AND A SALE PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE OF CERTAIN ASSETS, THE PROCEEDS OF WHICH WILL BE DISTRIBUTED IN ACCORDANCE WITH THE RESTRUCTURING SUPPORT AGREEMENT (AS DEFINED HEREIN) AND THIS TERM SHEET. THIS TERM SHEET IS BEING AGREED TO IN CONNECTION WITH, AND CONSTITUTES AN INTEGRAL PART OF, THE RESTRUCTURING SUPPORT AGREEMENT (THE “RESTRUCTURING SUPPORT AGREEMENT”) ENTERED INTO BY AND AMONG (A) THE DEBTOR, (B) PREPETITION UNSECURED CONVERTIBLE NOTE LENDERS THAT COLLECTIVELY HOLD, IN THE AGGREGATE, AT LEAST 86% OF THE 3.50% CONVERTIBLE SENIOR NOTES DUE 2027 (SUCH HOLDERS, THE “CONSENTING NOTEHOLDERS”), AND (C) ANY OTHER PERSON THAT BECOME PARTY TO THE RESTRUCTURING SUPPORT AGREEMENT FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF. PURSUANT TO, AND SUBJECT TO THE TERMS AND CONDITION OF, THE RESTRUCTURING SUPPORT AGREEMENT, THE DEBTOR AND THE CONSENTING NOTEHOLDERS HAVE AGREED TO SUPPORT THE TRANSACTIONS CONTEMPLATED THEREIN AND HEREIN. THIS TERM SHEET IS NOT AN OFFER OR A SOLICITATION WITH RESPECT TO ANY SECURITIES OF THE DEBTOR. NOTHING IN THIS TERM SHEET SHALL BE DEEMED TO BE THE SOLICITATION OF AN ACCEPTANCE OR REJECTION OF THE PLAN. ANY SUCH OFFER OR SOLICITATION SHALL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. THIS TERM SHEET IS PROTECTED BY RULE 408 OF THE FEDERAL RULES OF EVIDENCE AND ANY OTHER APPLICABLE STATUTES OR DOCTRINES PROTECTING THE USE OR DISCLOSURE OF CONFIDENTIAL SETTLEMENT DISCUSSIONS. NOTHING HEREIN SHALL BE DEEMED TO BE AN ADMISSION OF FACT OR LIABILITY BY ANY PARTY.


 


 
3 filing, are in form and substance reasonably acceptable to the Majority Consenting Noteholders. 5. By no later than thirty-one (31) days following the Petition Date, the Court shall have entered an order, which must be reasonably acceptable to the Majority Consenting Noteholders, approving the bid procedures and stalking horse protections, if any, set forth in the Sale Motion (the “Order Approving Bid Procedures”). 6. The deadline for parties to submit bids on the assets being sold pursuant to the Sale Motion (the “Qualified Bid Deadline”) shall be no later than thirty-four (34) days following the Petition Date. 7. The Debtor, in consultation with the Consenting Noteholders, shall select the highest and best bid from amongst the bids received within one (1) day following the Qualified Bid Deadline. 8. If multiple bids are received, the Debtor shall conduct an auction (the “Auction”) by no later than forty (40) days following the Petition Date. The Auction, if any, shall proceed in accordance with the Procedures laid out in the Sale Motion and the Order Approving Bid Procedures. 9. By no later than forty (40) days following the filing of the Plan and Disclosure Statement, the Court shall have entered an order approving the Disclosure Statement, which must be reasonably acceptable to the Majority Consenting Noteholders. 10. By no later than forty-five (45) days following the Petition Date, the Court shall have entered an order reasonably acceptable to the Majority Consenting Noteholders, approving the Sale Motion and consummation of the Sale Transaction (the “Sale Order”). 11. By no later than fifty-five (55) days after the Petition Date, the Sale Transaction shall close. 12. By no later than eighty (80) days following the filing of the Plan and Disclosure Statement, the Court shall enter an order reasonably acceptable to the Majority Consenting Noteholders confirming the Plan (the “Confirmation Order”). 13. The Effective Date shall occur by no later than April 14, 2023. Funding Costs and expenses relating to the Transaction and Sale Transaction shall be funded from cash on hand of the Debtor consistent with the budget attached hereto as Exhibit A (the “Chapter 11 Budget”), subject to a permitted cumulative negative variance on operating disbursements, tested on both an individual line-item and total basis, calculated on a


 


 
5 Other Priority Claims On the Effective Date, or as soon as reasonably practicable thereafter, except to the extent that a Holder of an Allowed Other Priority Claim agrees to less favorable treatment for such Holder, in full satisfaction of each all Allowed Other Priority Claim against the Debtor, each Holder thereof shall receive payment in full in Cash or other treatment rendering such Claim Unimpaired. Impairment / Voting: Unimpaired; deemed to accept. Noteholder Claims On the Effective Date, the Noteholder Claims shall be deemed Allowed in the outstanding principal amount of the Notes, plus accrued but unpaid interest, fees and any and all other amounts due thereunder. Each holder of a Noteholder Claim shall: a) be paid in Cash on the Effective Date or as soon as reasonably practicable thereafter, its pro rata right of recovery, which shall be calculated as follows: (1) the Debtor’s aggregate amount of Cash on hand as of the Effective Date (to be determined following payment of Allowed Administrative Claims, Allowed Priority Tax Claims, Allowed Other Secured Claims, and Allowed Other Priority Claims and funding of the Professional Fee Escrow and the Wind-Down Budget (the “Effective Date Cash Amount”)) multiplied by (2) the percentage of the Noteholder Claim as determined based on the aggregate amount of Allowed General Unsecured Claims, the Patheon Rejection Claim, and Noteholder Claims as determined by the Court in setting a Disputed Claims Reserve (the “Noteholder Effective Date Distribution”); and b) receive its pro rata right to recovery from the Liquidating Trust (as defined below) pursuant to the Liquidating Trust Waterfall. The timing for distributions from the Liquidating Trust will be set forth in a liquidating trust agreement acceptable to the Debtor and Majority Consenting Noteholders (the “Liquidating Trust Agreement”). Impairment / Voting: Impaired; eligible to vote. Patheon Rejection Claim Each holder of an Allowed Patheon Rejection Claim shall: a) be paid in Cash from the Liquidating Trust pursuant to the Liquidating Trust Waterfall on the date any of its Patheon Rejection Claim is Allowed, or as soon as reasonably practicable thereafter, its pro rata right of recovery, which shall be calculated as follows: (1) Effective Date Cash Amount multiplied by (2) the percentage of the Allowed Patheon Rejection Claim as determined based on the aggregate amount of Allowed General Unsecured Claims, the Allowed Patheon


 
6 Rejection Claim, and Noteholder Claims (the “Disputed Claim Distribution”); and b) receive its pro rata right to recovery from the Liquidating Trust (as defined below) pursuant to the Liquidating Trust Waterfall. Impairment / Voting: Impaired; eligible to vote. General Unsecured Claims Each holder of an Allowed General Unsecured Claim shall: a) be paid in Cash on the Effective Date or as soon as reasonably practicable thereafter, its pro rata right of recovery, which shall be calculated as follows: (1) Effective Date Cash Amount multiplied by (2) the percentage of the Allowed General Unsecured Claim as determined based on the aggregate amount of Allowed General Unsecured Claims, the Patheon Rejection Claim, and Noteholder Claims as determined by the Court in setting a Disputed Claims Reserve (the “GUC Effective Date Distribution”); and b) receive its pro rata right to recovery from the Liquidating Trust (as defined below) pursuant to the Liquidating Trust Waterfall. Impairment / Voting: Impaired; eligible to vote. De Minimis Unsecured Claims Each holder of an Allowed General Unsecured Claim in an amount of $7,500 or less (each a “De Minimis Unsecured Claim”) shall receive a recovery of 50% of the Allowed amount of their claim in Cash in full satisfaction of such Claim, subject to an aggregate recovery amount for such De Minimis Unsecured Claims of $60,000. Impairment / Voting: Impaired; eligible to vote. Section 510(b) Claims Section 510(b) Claims will be cancelled, released, and extinguished, and will be of no further force or effect, and each Holder of a 510(b) Claim will not receive any recovery or distribution on account of such Claim. Impairment / Voting: Impaired; deemed to reject. Interests Interests in the Debtor will be cancelled, released, and extinguished, and will be of no further force or effect, and each Holder of an Interest in the Debtor will not receive any recovery or distribution on account of such Interests. Impairment / Voting: Impaired; deemed to reject.


 


 


 
9 iii. the proposed Confirmation Order shall be reasonably acceptable to the Debtor and the Majority Consenting Noteholders. Conditions Precedent to Plan Effectiveness There shall be customary conditions precedent to the occurrence of the Effective Date, including, without limitation, the Conditions Precedent to Plan Confirmation set forth in this Term Sheet and the following: i. the Confirmation Order shall become a Final Order; ii. all Consenting Noteholder Fees and Expenses incurred and invoiced as of the Effective Date shall have been paid in full; and iii. the Restructuring Support Agreement shall not have been terminated and shall remain in full force and effect and the Debtor and Consenting Noteholders shall be in compliance therewith. Fees and Expenses The Debtor will be responsible for (i) all reasonable and documented fees and expenses of Davis Polk & Wardwell LLP (“Davis Polk”), as counsel to the Consenting Noteholders and U.S. Bank Trust Company, National Association, as Trustee (“U.S. Bank”), FTI Consulting, Inc. (“FTI”), as financial advisor to the Consenting Noteholders and U.S. Bank, and Greenberg Traurig, LLP (“Greenberg Traurig”), as counsel to U.S. Bank; (ii) all fees and expenses due to U.S. Bank as Trustee; (iii) any other reasonable and documented fees, costs, and expenses of any of the Consenting Noteholders incurred in connection with the Transaction (the “Consenting Noteholder Fees and Expenses”). U.S. Bank shall retain its senior charging lien pursuant to Section 7.06 of the Indenture on any money or property payable under the Indenture to Noteholders. Subject to the cap set forth above, the Debtor shall pay all Consenting Noteholder Fees and Expenses incurred and invoiced prior to the Petition Date at least one (1) Business Day prior to the Petition Date. No payment of post-petition Consenting Noteholder Fees and Expenses shall be made prior to the Debtor’s receipt of Court approval for the same. Interest Payment Upon execution of the RSA, the Debtor shall pay the accrued and outstanding November 2022 interest payment owed under the 3.50% Convertible Senior Notes Due 2027. Delivery Requirements The Debtor shall deliver, in a form reasonably satisfactory to the Majority Consenting Noteholders, a weekly Chapter 11 Budget variance report to be provided to advisors to the Consenting Noteholders. Executory Contracts and Unexpired Leases Other than such executory contracts and unexpired leases covered by the Sale Transaction (which shall be treated in accordance with the asset purchase agreement entered into in connection with the bidding procedures process), the Debtor shall seek to reject the executory contracts and unexpired leases.


 
10 The Plan will provide that the executory contracts and unexpired leases that are not assumed or rejected as of the Effective Date (either pursuant to the Plan or a separate motion) will be deemed rejected pursuant to section 365 of the Bankruptcy Code. Termination Events The Majority Consenting Noteholders may terminate this Term Sheet and the Restructuring Support Agreement by delivering written notice to the Debtor upon the occurrence of any of the following events, and such other events as are included in the Restructuring Support Agreement: 1. the Debtor’s failure to adhere to the Chapter 11 Budget, subject to the Permitted Variance; 2. the Debtor’s failure to meet any of the Transaction Milestones; provided that such failure remains uncured for five (5) Business Days after counsel to the Consenting Noteholders provided a written notice detailing such failure; 3. on or before the Plan and Disclosure Statement Consent Deadline, counsel to the Consenting Noteholders provides notice to the Debtor that the Required Objecting Noteholders have reasonably determined in good faith that the Plan and Disclosure Statement, as each may be amended from time to time after filing, are (i) inconsistent with the terms of this Agreement or (ii) otherwise adversely affect the Consenting Noteholders or the Noteholder Claims in any material respect; provided that such notice shall specify the basis of such determination and such material and adverse inconsistency shall remain uncured for five (5) Business Days after counsel to the Consenting Noteholders provides a written notice detailing such material and adverse inconsistency; 4. the Debtor amends the Plan or the Disclosure Statement in a manner materially adverse to the Consenting Noteholders following the Plan and Disclosure Statement Consent Deadline and such amendment is objected to by the Required Objecting Noteholders by a written notice (email being sufficient) to the Debtors; or 5. the Debtor’s proposal or pursuit of a settlement of the Patheon Rejection Claim prior to the Effective Date without the consent of the Majority Consenting Noteholders, such consent not to be unreasonably withheld. The Debtor may terminate this Term Sheet and the Restructuring Support Agreement by delivering written notice to the Majority Consenting Noteholders upon the occurrence of any of the following events, and such other events as are included in the Restructuring Support Agreement: 1. the Debtor receives notice on or before the Plan and Disclosure Statement Consent Deadline that the Required Objecting


 
11 Noteholders have reasonably determined in good faith that the Plan and Disclosure Statement, as each may be amended from time to time after filing, are (i) inconsistent with the terms of this Term Sheet or the Restructuring Support Agreement or (ii) if not addressed in this Term Sheet or the Restructuring Support Agreement, otherwise adversely affects the Consenting Noteholders or the Noteholder Claims in any material respect; 2. the breach in any material respect by one or more of the Consenting Noteholders holding an amount of Notes’ Claims that would result in non-breaching Consenting Noteholders holding less than two-thirds (66.67%) of the aggregate outstanding principal amount of Notes’ Claims that remains uncured for a period of fifteen (15) Business Days after receipt by counsel to the Consenting Noteholders of a written notice of breach; 3. the failure of the Consenting Noteholders to constitute Holders (or investment advisors, sub-advisors, or managers of discretionary accounts of holders) of, in the aggregate, at least two-thirds of the aggregate outstanding principal amount of the Notes; or 4. the board of directors or such similar governing body of the Debtor determines in good faith, after consulting with counsel (i) that proceeding with the Transaction would be inconsistent with the exercise of its fiduciary duties or its compliance with applicable law; or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal


 
12 Annex I A. Releases by the Debtor. As of the Effective Date, pursuant to section 1123(b) of the Bankruptcy Code and for good and valuable consideration, each Released Party is deemed released and discharged by the Debtor and its estate from any and all claims and Causes of Action, whether known or unknown, including any claims and Causes of Action that the Debtor or its estate would have been legally entitled to assert in its own right and any claims or Causes of Action that could be asserted derivatively, based on, or relating to, or in any manner arising from, in whole or in part, the Debtor (including the management, ownership, operation thereof, or otherwise), any securities issued by the Debtor and the ownership thereof, the Debtor’s in- or out-of-court restructuring efforts, any avoidance actions, the Case, the formulation, preparation, dissemination, negotiation, or filing of the Term Sheet, the Restructuring Support Agreement, the Disclosure Statement, the Sale Motion, the Plan, the Plan Supplement, or any other transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Sale Transaction, the Plan, the Plan Supplement, the Case, the filing of the Case, the pursuit of the Confirmation Order, the pursuit of the Sale Order, the pursuit of consummation, the administration and implementation of the Plan, including the distribution of property under the Plan or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence or omission taking place on or before the Effective Date. Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release (i) any post-Effective Date obligations of any party or entity under the Plan or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any obligations under or in respect of the Sale Transaction, or (iii) the Retained Causes of Action. Each Person and Entity deemed to grant the Debtor releases shall be deemed to have granted such releases notwithstanding that such Person or Entity may hereafter discover facts in addition to, or different from, those which such Person or Entity now knows or believes to be true, and without regard to the subsequent discovery or existence of such different or additional facts, and such Person or Entity expressly waives any and all rights that such Person or Entity may have under any statute or common law principle, including, without limitation, section 1542 of the California Civil Code, to the extent such section is applicable, which would limit the effect of such releases to those claims or Causes of Action actually known or suspected to exist on the Effective Date. Section 1542 of the California Civil Code generally provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” B. Releases by the Releasing Parties. As of the Effective Date, each Releasing Party is deemed to have released and discharged each Released Party from any and all claims and Causes of Action, whether known or unknown, including any derivative claims, asserted on behalf of the Debtor (or its estate), that such Entity would have been legally entitled to assert (whether individually or collectively), based on or relating to, or in any manner arising from, in whole or in part, the Debtor (including the management, ownership or operation thereof, or otherwise), any securities issued by the Debtor and the ownership thereof, the Debtor’s in- or out-of-court restructuring efforts, the Case, the formulation, preparation, dissemination, negotiation, or filing of the Term Sheet, the Restructuring Support


 
13 Agreement, the Disclosure Statement, the Sale Motion, the Plan, the Plan Supplement, or any other transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Sale Transaction, the Plan, the Plan Supplement, the Case, the filing of the Case, the pursuit of the Confirmation Order, the pursuit of the Sale Order, the pursuit of consummation, the administration and implementation of the Plan, including the distribution of property under the Plan or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence or omission taking place on or before the Effective Date. Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release (i) any post Effective Date obligations of any party or entity under the Plan or any document, instrument, or agreement (including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any obligations under or in respect of the Sale Transaction, or (iii) the Retained Causes of Action. Each Person and Entity deemed to grant the releases described in this Section shall be deemed to have granted such releases notwithstanding that such Person or Entity may hereafter discover facts in addition to, or different from, those which such Person or Entity now knows or believes to be true, and without regard to the subsequent discovery or existence of such different or additional facts, and such Person or Entity expressly waives any and all rights that such Person or Entity may have under any statute or common law principle, including, without limitation, section 1542 of the California Civil Code, to the extent such section is applicable, which would limit the effect of such releases to those claims or causes of action actually known or suspected to exist on the Effective Date. Section 1542 of the California Civil Code generally provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” C. Exculpation. Except as otherwise specifically provided in the Plan, no Exculpated Party shall have or incur liability for, and each Exculpated Party is exculpated from any Cause of Action for any Claim related to any act or omission in connection with, relating to, or arising out of, the Case, the formulation, preparation, dissemination, negotiation, or filing of the Debtor’s in-court restructuring efforts, the Term Sheet, the Restructuring Support Agreement, the Disclosure Statement, the Sale Motion, the Plan, the Plan Supplement, or any restructuring transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Sale Transaction, the Plan, the Plan Supplement, the Case, the filing of the Case, the pursuit of the Confirmation Order, the pursuit of the Sale Order, the pursuit of consummation, the administration and implementation of the Plan, including the distribution of property under the Plan or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence or omission taking place between the Petition Date and the Effective Date, except for claims related to any act or omission that is determined in a final order by a court of competent jurisdiction to have constituted actual intentional fraud, willful misconduct, or gross negligence of such Person, but in all respects such Entities shall be entitled to reasonably rely upon the written advice of counsel with respect to their duties and responsibilities pursuant to the Plan. “Consenting Noteholder Releasing Parties” means, each of, and in each case in its capacity as such: (a) the Consenting Noteholders; (b) the Trustee; (c) to the maximum extent permitted by Law; each


 
14 current and former Affiliate of each Entity in clauses (a) through (b); and (d) to the maximum extent permitted by Law, each Related Party of each Entity in clauses (a) through (c). “Exculpated Party” means, in each case in its capacity as such, (a) the Debtor; (b) the Debtor’s directors and officers during the Case; and (c) with respect to the foregoing clauses (a) through (b), to the fullest extent permitted by law, such Person’s Related Parties. “Related Party” means each of, and in each case in its capacity as such, current and former directors, managers, officers, committee members, members of any governing body, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds, predecessors, participants, successors, assigns, subsidiaries, Affiliates, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory board members, financial advisors, attorneys (including any other attorneys or professionals retained by any current or former director or manager in his or her capacity as director or manager of an Entity), accountants, investment bankers, consultants, representatives, and other professionals and advisors and any such Person’s or Entity’s respective heirs, executors, estates, and nominees. “Release Opt-Out” means the item set forth in the ballot form distributed to each Holder of a Claim entitled to vote to accept or reject the Plan pursuant to which such Holder may opt out of the releases set forth in the Plan. “Released Parties” means each of, and in each case in its capacity as such: (a) the Debtor; (b) the Consenting Noteholder Releasing Parties; and (c) each Related Party of the Debtor or the Consenting Noteholder Releasing Parties, including, for the avoidance of doubt, any professional retained by the Debtor or the Consenting Noteholders in connection with this Case. “Releasing Parties” means, collectively, and in each case, in their respective capacities as such, (a) the Debtor; (b) the Consenting Noteholder Releasing Parties; (c) all Holders of Claims deemed hereunder to have accepted the Plan that have not filed an objection to the release contained in the Plan prior to the deadline to object to confirmation of the Plan; (d) all Holders of a Claim or Interest that (i) vote to accept or reject the Plan and do not timely submit a Release Opt-Out, or (ii) do not vote to accept or reject the Plan and either do not timely submit a Release Opt-Out or do not file an objection to the releases contained in the Plan prior to the deadline to object to confirmation of the Plan; (e) to the maximum extent permitted by Law; each current and former Affiliate of each Person or Entity in clauses (a) through (d); and (f) to the maximum extent permitted by Law, each Related Party of each Entity in clauses (a) through (d). “Retained Causes of Action” means those certain Causes of Action retained for the Liquidating Trust to commence and pursue, as set forth in the Plan.


 


 
Tricida, Inc. Extended Budget POST POST POST POST POST POST POST POST POST POST POST POST POST WIND DOWN WIND DOWN WIND DOWN WIND DOWN WIND DOWN Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 DRAFT 1/11 ‐ 1/13 Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Week Ending Grand week ending Friday 1/20/2023 1/27/2023 2/3/2023 2/10/2023 2/17/2023 2/24/2023 3/3/2023 3/10/2023 3/17/2023 3/24/2023 3/31/2023 4/7/2023 4/14/2023 4/21/2023 4/28/2023 5/5/2023 5/12/2023 Total Cash Flow Receipts Interest Income ‐$                    ‐$                  ‐$                  106$                  ‐$                  ‐$                  ‐$                  97$                    ‐$                  ‐$                  ‐$                  89$                    ‐$                  ‐$                     ‐$                     ‐$                     92$                      ‐$                     384$                   Operating Disbursements Payroll & Benefits – 66 – 172 – 172 66 172 – 172 66 313 – – – – – – 1,200                  Rent & Utilities – – – 403 – – – 403 – – – – – – – – – – 806                     Insurance – – – 52 – – – – – – – – – – – – – – 52                       External Finance & HR – 50 – 50 – 50 – 50 – 50 – 50 – – – – – – 300                     External Legal, Facilities & IT – 180 – 80 100 80 – 180 – 80 50 80 – – – – – – 830                     Other Operating Disbursements – 295 30 220 100 250 30 375 40 275 80 275 25 – – – 25 – 2,020                  Total Operating Disbursements ‐$                    591$                  30$                    977$                  200$                  552$                  96$                    1,180$               40$                    577$                  196$                  718$                  25$                    ‐$                     ‐$                     ‐$                     25$                      ‐$                     5,208$                Operating Cash Flow ‐$                    (591)$                (30)$                  (872)$                (200)$                (552)$                (96)$                  (1,083)$             (40)$                  (577)$                (196)$                (629)$                (25)$                  ‐$                     ‐$                     ‐$                     67$                      ‐$                     (4,824)$               Cumulative Operating Cash Flow ‐$                    (591)$                (621)$                (1,493)$             (1,693)$             (2,245)$             (2,341)$             (3,424)$             (3,464)$             (4,041)$             (4,237)$             (4,866)$             (4,891)$             (4,891)$                (4,891)$                (4,891)$                (4,824)$                (4,824)$                (4,824)$               Non‐Operating Disbursements Debtor Counsel ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        2,000                 ‐                        ‐                        ‐                           1,000                   ‐                           ‐                           ‐                           3,000                  Debtor Investment Banker ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        2,300                 ‐                        ‐                        ‐                           ‐                           ‐                           ‐                           ‐                           2,300                  Debtor Financial Advisor ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        450                    ‐                        ‐                        ‐                           200                      ‐                           ‐                           ‐                           650                     United States Trustee ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                           ‐                           250                      ‐                           ‐                           250                     Bondholder Counsel ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        875                      ‐                           ‐                           ‐                           ‐                           875                     Bondholder Financial Advisor ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        505                      ‐                           ‐                           ‐                           ‐                           505                     Unsecured Creditors Committee Legal ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        666                    ‐                        ‐                        ‐                           333                      ‐                           ‐                           ‐                           999                     Unsecured Creditors Committee FA ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        66                     ‐                        ‐                        ‐                           33                        ‐                           ‐                           ‐                           99                       Claims Agent ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        150                    ‐                        ‐                        ‐                           75                        ‐                           ‐                           ‐                           225                     Other Non‐Operating Disbursements ‐                         ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                        ‐                           ‐                           ‐                           ‐                           ‐                           ‐                      Total Non‐Operating Disbursements ‐$                    ‐$                  ‐$                  ‐$                  ‐$                  ‐$                  ‐$                  ‐$                  ‐$                  ‐$                  5,632$               ‐$                  ‐$                  1,380$                 1,641$                 250$                    ‐$                     ‐$                     8,903$                Net Cash Flow ‐$                    (591)$                (30)$                  (872)$                (200)$                (552)$                (96)$                  (1,083)$             (40)$                  (577)$                (5,828)$             (629)$                (25)$                  (1,380)$                (1,641)$                (250)$                   67$                      ‐$                     (13,727)$             Cumulative Net Cash Flow ‐$                    (591)$                (621)$                (1,493)$             (1,693)$             (2,245)$             (2,341)$             (3,424)$             (3,464)$             (4,041)$             (9,869)$             (10,498)$            (10,523)$            (11,903)$              (13,544)$              (13,794)$              (13,727)$              (13,727)$              (13,727)$             Cash Balance Beginning Balance 47,148$              47,148$             46,557$             46,527$             45,655$             45,455$             44,903$             44,807$             43,724$             43,684$             43,107$             37,279$             36,650$             36,625$                35,245$                33,604$                33,354$                33,421$                Net Cash Flow ‐$                    (591)$                (30)$                  (872)$                (200)$                (552)$                (96)$                  (1,083)$             (40)$                  (577)$                (5,828)$             (629)$                (25)$                  (1,380)$                (1,641)$                (250)$                   67$                      ‐$                     Ending Balance 47,148$              46,557$             46,527$             45,655$             45,455$             44,903$             44,807$             43,724$             43,684$             43,107$             37,279$             36,650$             36,625$             35,245$                33,604$                33,354$                33,421$                33,421$               


 
EXHIBIT B Provision for Transfer Agreement The undersigned (“Transferee”) hereby acknowledges that it has read and understands the Restructuring Support Agreement, dated as of _______________ (the “Agreement”),1 by and among Tricida, Inc. and the Consenting Noteholders, including the transferor to the Transferee of any Debtor Claims/Interests (each such transferor, a “Transferor”), and agrees to be bound by the terms and conditions thereof to the extent the Transferor was thereby bound, and shall be deemed a “Consenting Noteholder” under the terms of the Agreement. The Transferee specifically agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained therein as of the date of the Transfer, including the agreement to be bound by the vote of the Transferor if such vote was cast before the effectiveness of the Transfer discussed herein. Date Executed: Name: Title: Address: E-mail address(es): Aggregate Principal Amount of Notes: $_______ 1 Capitalized terms used but not otherwise defined herein shall having the meaning ascribed to such terms in the Agreement.


 
EXHIBIT C Form of Joinder The undersigned (“Joinder Party”) hereby acknowledges that it has read and understands the Restructuring Support Agreement, dated as of January 11, 2023 (the “Agreement”),2 by and among Tricida, Inc. and the Consenting Noteholders, and agrees to be bound by the terms and conditions thereof to the extent the other Parties are thereby bound, and shall be deemed a “Consenting Noteholder” under the terms of the Agreement. The Joinder Party specifically agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained therein as of the date hereof and any further date specified in the Agreement. Date Executed: Name: Title: Address: E-mail address(es): Aggregate Principal Amount of Notes: $_______ 2 Capitalized terms used but not otherwise defined herein shall having the meaning ascribed to such terms in the Agreement.


 
exhibit102_fitzgeraldind
1 INDEPENDENT DIRECTOR AGREEMENT THIS INDEPENDENT DIRECTOR AGREEMENT (the “Agreement”) is made as of December 23, 2022, by and between Tricida, Inc., a Delaware corporation (the “Company”), and Auburndale Advisors LLC (“Contractor”). BACKGROUND WHEREAS, the Company desires and has requested that Contractor arrange for Thomas G. FitzGerald (the “Director”) to serve as an independent director of the Company. WHEREAS, the Company and Contractor intend this Agreement to induce the Contractor to arrange for the Director to serve in the capacity set forth above and to set forth certain understandings between the parties. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements and promises contained herein, and other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. TERM. Notwithstanding anything in this Agreement to the contrary, the term of this Agreement (the “Term”) shall commence as of the earliest date that both (i) the Director has been duly appointed by the Company to its board of directors and (ii) the Company has obtained a directors and officers’ insurance policy reasonably acceptable to Director in accordance with Section 6(g) of this Agreement and shall continue until such time as Director’s successor is duly elected and qualified or until Director’s earlier death, resignation or removal. 2. DUTIES. Director shall (i) serve as an independent director of the Company and to be reasonably available to perform the duties consistent with such position pursuant to the Amended and Restated Certificate of Incorporation of the Company, dated June 11, 2020, and the Amended and Restated Bylaws of the Company, as adopted June 22, 2018 and effective as of July 2, 2018, as may be further amended from time to time in accordance with applicable law (together, the “Organizational Documents”) and the laws of the state of Delaware; and (ii) serve as a member of any committee of the Company’s board of directors, if applicable, with the specific scope of duties described in any board-approved documentation establishing such committee (the “Services”). Such Services for the Company shall include, without limitation, participation in telephonic and/or in-person meetings of the Company’s board of directors and such other duties reasonably consistent with acting as a director of a company. Without limiting the generality of the foregoing, Contractor confirms that Director is independent (as such term has been construed under Delaware law with respect to directors of Delaware corporations). By execution of this Agreement, Company agrees to use commercially reasonable efforts to have the Director appointed as a member of the Company’s board of directors as soon as practicable after the date hereof, and Contractor and Director agree to accept Director’s appointment or election as independent Director of the Company, subject to the Company obtaining insurance coverage in accordance with the terms of this Agreement. The Company acknowledges that Director currently holds similar positions with other companies and provides a variety of services to other companies and the Company agrees that Director may maintain such positions and any future positions (“Other Employment”), provided that such Other Employment shall not materially interfere with Director’s obligations under this Agreement. Director confirms that he will be able to devote sufficient time and attention to the Company as is reasonably necessary to fulfill his responsibilities as a director of the Company and that the Other Employment will not in any way impact Director’s independence. Exhibit 10.2


 
2 The parties hereto acknowledge and agree that Director is being engaged to serve as an independent director of the Company only and is not being engaged to serve, and shall not serve, the Company in any other capacity. Nothing in this Agreement is intended or shall be deemed to create any employment, partnership, agency or joint venture relationship between the parties or between Contractor or Director and the Company. Director acknowledges and agrees that, in Director’s capacity as a director of the Company, Director’s status at all times shall be that of an independent contractor. Each of Contractor and Director further acknowledges that the Company makes no warranties as to any tax consequences regarding payment of any amounts hereunder, specifically agrees that the determination of any tax liability or other consequences of any payment made hereunder are Contractor’s or Director’s (as applicable) sole and complete responsibility and that Contractor or Director (as applicable) will pay all taxes, if any, assessed on such payments under the applicable laws of any federal, state, local, foreign or other jurisdiction and, to the extent not so paid, will indemnify the Company for any taxes so assessed against the Company. Director also agrees that, during the Term, Director shall not be eligible to participate in any of the employee benefit plans or arrangements of the Company (including with respect to any severance or vacation). 3. COMPENSATION. During the Term, for all Services to be rendered by Director hereunder, and so long as Director remains a director of the Company, the Company agrees to pay, or cause to be paid, to Contractor, for the benefit of Director, a monthly fee of $25,000 per month (the “Monthly Fee”) in advance, which will be fully earned upon receipt; provided, however, that the Company shall pay the Monthly Fees corresponding to a period of no less than six (6) months after the Director has been duly appointed to the board, regardless of whether the Director’s Services end for any reason during that period or whether the Director’s successor, if any, has been duly elected and appointed to the board. 4. EXPENSES. In addition to the compensation provided in Section 3 hereof, the Company will reimburse Director for reasonable, documented out-of-pocket expenses that Director has incurred in regard to his provision of Services during the Term (the “Expenses”) including legal expenses associated with executing this Agreement. Such Expenses shall be reimbursed as soon as practicable following receipt by the Company of documentation from Director evidencing such Expenses, consistent with the Company’s policies relating to expense reimbursement as in effect from time to time. 5. CONFIDENTIALITY. The Company and Director each acknowledge that in order for Director to perform his duties as an independent Director of the Company, Director shall necessarily be obtaining access to certain confidential information concerning the Company and its affiliates, including, but not limited to business methods, information systems, financial data and strategic plans which are unique assets of the Company or its affiliates (“Confidential Information”). Director covenants that he shall not, either directly or indirectly, in any manner, utilize or disclose to any person, firm, corporation, association or other entity any Confidential Information, except (i) to the extent such Confidential Information (A) is generally known to the public, (B) was known to Director prior to its disclosure to Director by the Company, (C) was obtained by Director from a third party which, to Director’s knowledge, was not prohibited from disclosing such information to Director pursuant to any contractual, legal or fiduciary obligation, or (D) was independently derived by Director without any use of Confidential Information, or (ii) unless and to the extent that Director is required to disclose such Confidential Information under the terms of a subpoena or order issued by a court of competent jurisdiction or pursuant to applicable law; provided that Director must (A) if legally permissible, promptly provide written notice to the Company of the existence, terms and circumstances surrounding such a requirement to disclose prior to disclosure, so that the Company may seek an appropriate protective order, (B) cooperate with the Company in the Company’s efforts and at its cost to contest, object to, or limit such a request and (C) disclose only that portion of the Confidential Information that is legally required to be disclosed. This Section 5 shall continue in effect after Director has ceased acting as an independent director of the Company. 6. INDEMNIFICATION. (a) Certain Definitions. For purposes of this Section 6, the term:


 
3 “Expenses” means all expenses, amounts, costs, liabilities, losses, damages and other amounts (including, without limitation, attorneys’ and professional fees, retainers for attorneys and professional, expert and witness fees, disbursements and expenses of counsel and professionals, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by Director or on Director’s behalf in connection with a Proceeding. “Proceeding” means any alleged, threatened, pending, actual or completed action, suit, inquiry or proceeding, whether civil, criminal, administrative, or investigative, whether public or private, and, including any such alleged, threatened, pending, actual or completed action, suit, inquiry or proceeding by or in the right of the Company. (b) Indemnification. In the event that Director or Contractor was or is made a party or is threatened to be made a party to or is involved (including, without limitation, as a witness) in any Proceeding by reason of the fact that Director or a person of whom Director is the legal representative was a Director of the Company and, whether the basis of such Proceeding is alleged action in an official capacity as a Director or in any other capacity while serving as a Director of the Company, the Company shall indemnify and hold harmless Director to the fullest extent authorized by Delaware law or any other applicable law or rule, but no less than to the extent set forth herein, against all Expenses; provided, however, that the Company shall indemnify Director only if Director provides prompt written notice of the Proceeding to the Company (failure to give prompt notice shall not relieve Company of its indemnification obligations hereunder unless it was materially prejudiced thereby); and provided, further, that the Company shall indemnify Director only if Director acted honestly and in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on Director by the Company’s Organizational Documents and with a view to the best interests of the Company and did not engage in fraud, gross negligence or willful misconduct and, in the case of criminal Proceedings, Director had no reasonable cause to believe his conduct was unlawful as determined by a court of competent jurisdiction; and provided, further, that the Company shall indemnify Director in connection with a Proceeding (or claim or part thereof) initiated by Director only if (i) such Proceeding is a suit or other action seeking to enforce Director’s right to advancement of expenses and/or indemnification under this Agreement or (ii) such Proceeding (or claim or part thereof) was authorized by the board of directors of the Company. (c) Presumptions. In the event that, under Delaware law, the entitlement of Director and/or Contractor to be indemnified hereunder shall depend upon whether Director shall have acted in good faith and in a manner Director reasonably believed to be in or not opposed to the best interests of the Company or without fraud, gross negligence and/or willful misconduct and with respect to criminal Proceedings, had no reasonable cause to believe Director’s conduct was unlawful, or shall have acted in accordance with some other defined standard of conduct, or whether fees and disbursements of counsel and other costs and amounts are reasonable, the burden of proof of establishing that Director is not entitled to indemnification because he has not acted in accordance with such standard and that such costs and amounts are unreasonable shall rest with the Company, and Director shall be presumed to be entitled to indemnification unless, and only unless, it shall be determined by a court of competent jurisdiction (after exhaustion or expiration of the time for filing of all appeals) that Director has not met such standard or, with respect to the amount of indemnification, that such costs and amounts are not reasonable (in which case Director shall be indemnified to the extent such costs and amounts are determined by such court to be reasonable). In addition, and without in any way limiting the provisions of this Section 6(c), Director shall be deemed to have acted in good faith and in a manner Director reasonably believed to be in or not opposed to the best interests of the Company (and not acted with gross negligence or willful misconduct) or, with respect to any criminal Proceeding to have had no reasonable cause to believe Director’s conduct was unlawful, if Director’s action is based on (i) information supplied to Director by the officers of the Company in the course of their duties, (ii) the advice of legal counsel for the Company or (iii) information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company.


 
4 The provisions of this Section 6(c) shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct, if applicable, under Delaware law. (d) Indemnification When Wholly or Partly Successful. Without limiting the scope of indemnification provided in Section 6(b), to the extent that Director or Contractor is a party to and is successful, on the merits or otherwise, in any Proceeding, Director and Contractor shall be indemnified to the maximum extent permitted by Delaware law against all Expenses. If Director or Contractor is not wholly successful in a Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Director and Contractor against all Expenses actually and reasonably incurred by Director or Contractor and on their behalf in connection with each successfully resolved claim, issue or matter, and shall otherwise indemnify Director and Contractor to the extent required by Section 6(b). All Expenses shall be presumed to have been incurred with respect to successfully resolved claims, issues and matters unless, and only unless (with the burden of proof being on the Company), it shall be determined by a court of competent jurisdiction (after exhaustion or expiration of the time for filing of all appeals) that a portion of such Expenses were incurred with respect to unsuccessfully resolved claims, issues or matters. For purposes of this Section 6(d) and without limitation, the termination of any claim, issue or matter in any Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. (e) Suit to Recover Indemnification. If a claim under Section 6(b) or Section 6(h) of this Agreement is not paid in full by the Company within thirty days after a written claim has been received by the Company, Director or Contractor may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. It shall be a defense to any such suit (other than a suit brought to enforce a claim for expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that Director has not met the standards of conduct, if applicable, which make it permissible under Delaware law and the terms of this Agreement for the Company to indemnify Director and Contractor for the amount claimed, but the burden of proving such defense and its applicability shall be on the Company. Neither the failure of the Company (including its board of directors or equity holders) to have made a determination prior to the commencement of such suit that indemnification of Director or Contractor is proper in the circumstances because Director has met the standard of conduct, if applicable, under Delaware law and the terms of this Agreement, nor an actual determination by the Company (including its board of directors or equity holders) that Director has not met such applicable standard of conduct, shall be a defense to the suit or create a presumption that Director has not met the applicable standard of conduct. The expenses incurred by Director or Contractor in bringing such suit (whether or not Director or Contractor is successful) shall be paid by the Company unless a court of competent jurisdiction determines that each of the material assertions made by Director or Contractor in such suit was not made in good faith. (f) Rights Not Exclusive; Rights Continue. The right to indemnification and the payment of expenses incurred in defending any Proceeding in advance of its final disposition conferred in this Agreement shall not be exclusive of, or limit in any manner whatsoever, any other right which Director or Contractor may have or hereafter acquire under any statute, provision of the Organizational Documents, agreement, vote of equity holders or otherwise. The indemnification, expense advancement and other rights of Director and Contractor herein shall continue after Director ceases to be an independent Director for so long as Director or Contractor may be subject to any possible claim for which he would be entitled to indemnification under this Agreement or otherwise as a matter of law, and shall not be amended, modified, terminated, revoked or otherwise altered without Director’s prior written consent. (g) Insurance. The Company or one of its affiliates (which, in the case of an affiliate, shall include coverage of directors of the Company) shall obtain and/or maintain insurance to protect the Company and any Director or trustee of the Company against any expense, liability or loss, including customary director and officer insurance acceptable to the Director in form and amounts, which shall include both an annual policy commencing at the start of the Term and a tail policy to protect Director for a period of no less than 5 additional years. Director shall have the right to receive a copy of any policy for such insurance upon request.


 
5 (h) Advancement of Defense Costs. Notwithstanding anything in the Organizational Documents to the contrary, the Company shall also promptly pay Director and Contractor the expenses actually and reasonably incurred in defending any Proceeding as incurred and in advance of its final disposition without requiring any preliminary determination of the ultimate entitlement of Director or Contractor to indemnification; provided, however, the payment of such expenses so incurred by Director or Contractor in advance of the final disposition of any Proceeding shall be made only upon delivery to the Company of an unsecured undertaking reasonably acceptable to the Company by or on behalf of Director, to repay (without interest) all amounts so advanced if it shall ultimately be determined that Director or Contractor is not entitled to be indemnified under this Agreement. (i) Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Director and Contractor, who shall, at the Company’s expense, execute all papers required and take all action necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. (j) No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Proceeding against Director or Contractor to the extent Director or Contractor has otherwise actually received payment (under any insurance policy, contract, agreement, the Organizational Documents, or otherwise) of the amounts otherwise indemnifiable hereunder. (k) Contribution. If the indemnification provided in Section 6(b) and the advancement provided in Section 6(h) should under Delaware law be unenforceable or insufficient to hold Director and Contractor harmless in respect of any and all Expenses with respect to any Proceeding, then the Company shall, subject to the provisions of this Section 6(k) and for purposes of this Section 6(k) only, upon written notice from Director or Contractor, be treated as if it were a party who is or was threatened to be made a party to such Proceeding (if not already a party), and the Company shall contribute to Director or Contractor the amount of Expenses incurred by Director and Contractor in such proportion as is appropriate to reflect the relative benefits accruing to the Company and all of its directors, trustees, officers, employees and agents (other than Director) treated as one entity on the one hand, and Director on the other, which arose out of the event(s) underlying such Proceeding, and the relative fault of the Company and all of its directors, trustees, officers, employees and agents (other than Director) treated as one entity on the one hand, and Director on the other, in connection with such event(s), as well as any other relevant equitable considerations. No provision of this Section 6(k) shall: (i) operate to create a right of contribution in favor of Director or Contractor if it is judicially determined that, with respect to any Proceeding, Director engaged in willful misconduct or (ii) limit Director’s rights to indemnification and advancement of Expenses, whether under this Agreement or otherwise. The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Director (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Director and does not contain an admission of wrongdoing by Director. Director shall not enter into any settlement of any Proceeding which may be subject to indemnification hereunder without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed). The Company shall have the right to control the defense of any Proceeding for which indemnification may be sought hereunder with counsel reasonably acceptable to Director. 7. MISCELLANEOUS. Contractor confirms that the execution and performance of this Agreement shall not be in violation of any agreement or obligation (whether or not written) that Director may have with or to any person or entity. In the event Contractor knows or has reason to know that any of the statements made herein is not true or will not be true in the future, Contractor shall immediately report such finding to the Company. Contractor hereby acknowledges and agrees that this Agreement shall be an obligation solely of the Company and no other party is a beneficiary hereunder.


 
6 8. INFORMATION. The Company shall provide Director with all information provided to other directors of the Company at such times as such information is provided to such other directors; any information reasonably requested by Director; quarterly financial information following the end of each fiscal quarter as soon as practicable, but no later than 60 days after, and shall make its management available to discuss the business and operations of the Company as soon as practicable upon Director’s reasonable request. 9. EFFECT OF WAIVER. The waiver by either party of the breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof. No waiver shall be deemed effective until signed by the parties. Each waiver shall be limited and no waiver shall be construed as a continuing waiver. 10. GOVERNING LAW. This Agreement shall be interpreted in accordance with, and the rights of the parties hereto shall be determined by, the laws of the state of Delaware without reference to its conflicts of laws principles. 11. ASSIGNMENT. The rights and benefits of the Company under this Agreement shall not be transferable except by operation of law without Contractor’s prior written consent, and all the covenants and agreements hereunder shall inure to the benefit of, and be enforceable by or against, its successors and assigns. The duties and obligations of Contractor and in arranging for Director to provide Services under this Agreement are personal and therefore Contractor may not assign any right or duty under this Agreement without the prior written consent of the Company. 12. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of and be enforceable by each of the parties hereto and their respective successors, assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), heirs and personal legal representatives, provided that the Company shall remain liable hereunder until the successor entity complies with the following sentence. The Company shall require and cause any successor (whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business or assets of the Company, by written agreement in form and substance reasonably satisfactory to Contractor, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. 13. SEVERABILITY; HEADINGS. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid as applied to any fact or circumstance, it shall be modified by the minimum amount necessary to render it valid, and any such invalidity shall not affect any other provision, or the same provision as applied to any other fact or circumstance. The headings used in this Agreement are for convenience only and shall not be construed to limit or define the scope of any Section or provision. 14. COUNTERPARTS; AMENDMENT. This Agreement may be executed in one or more counterparts, each of which shall be considered one and the same agreement. No amendment, modification, or waiver to this Agreement shall be effective unless in writing signed by each of the parties hereto. [Signature page follows]


 
The parties hereto have caused this Agreement to be executed on the date first above written. Tricida, Inc. By:_/s/ Robert McKague_____________ Robert McKague, Executive Vice President, General Counsel, & Chief Compliance Officer Auburndale Advisors LLC By: /s/ Thomas G. FitzGerald Thomas G. FitzGerald, Sole Member