Exhibit 4.7
EXECUTION COPY
SCIOS INC.,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
AND
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 29, 2003
FIRST SUPPLEMENTAL INDENTURE dated as of April 29,
2003, among SCIOS INC., a Delaware corporation (the
"Company"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, a New Jersey corporation
("Parent"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
WHEREAS, pursuant to the Indenture dated as of August 5, 2002 (the
"Indenture"), between the Company and the Trustee, the Company issued
$150,000,000 aggregate principal amount of 5.50% Convertible Subordinated
Notes Due 2009 (the "Securities");
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of
February 10, 2003 (the "Merger Agreement"), among Parent, Saturn Merger Sub,
Inc, a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"),
and the Company, Sub has agreed to merge (the "Merger") with and into the
Company, with the Company being the surviving corporation in the Merger, and
following which the Company will be a wholly owned subsidiary of Parent;
WHEREAS, pursuant to the Merger Agreement, as of the effective time
of the Merger (the "Effective Time") (a) each issued and outstanding share of
common stock, par value $.001 per share, of the Company ("Scios Common
Stock"), other than shares directly owned by the Company, Parent or Sub, shall
be converted into the right to receive $45.00 in cash without interest and (b)
each issued and outstanding share of Series B preferred stock, par value $.001
per share, of the Company (the "Scios Preferred Stock"), other than shares
directly owned by the Company, Parent or Sub, shall be converted into the
right to receive $4,500.00 in cash without interest;
WHEREAS, pursuant to Section 10.7 of the Indenture, as a result of
the Merger, the Company is required to execute and deliver to the Trustee a
supplemental indenture;
WHEREAS Parent desires to unconditionally and irrevocably guarantee,
on a subordinated basis, the obligations of the Company under the Indenture
and the Securities on the terms and conditions set forth herein;
WHEREAS, Section 9.1 of the Indenture provides that the Company,
when authorized by resolutions of the Board of Directors of the Company, the
Company and the Trustee may from time to time and at any time enter into a
supplemental indenture, without the consent of any Holder of the Securities,
to, among other things, (i) comply with Section 10.7 of the Indenture and (ii)
make any change that would provide any additional rights or benefits to the
Holders of the Securities or that does not adversely affect the legal rights
under the Indenture or any such Holders; and
WHEREAS, the Company and Parent have complied with all conditions
precedent provided for in the Indenture relating to this First Supplemental
Indenture.
NOW, THEREFORE, the Company, Parent and the Trustee hereby agree for
the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. DEFINITIONS. (a) Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Indenture.
(b) Section 1.1 of the Indenture is hereby amended to add the
following definitions:
"DESIGNATED PARENT SENIOR INDEBTEDNESS" means Parent Senior
Indebtedness in which the instrument creating or evidencing the same or the
assumption or guarantee thereof (or related agreements or documents to which
Parent is a party) expressly provides that such Parent Senior Indebtedness
shall be "Designated Parent Senior Indebtedness" for purposes of the Indenture
(provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Parent Senior Indebtedness to
exercise the rights of Designated Parent Senior Indebtedness). If any payment
made to any holder of any Designated Parent Senior Indebtedness or its
Representative with respect to such Designated Parent Senior Indebtedness is
rescinded or must otherwise be returned by such holder or Representative upon
the insolvency, bankruptcy or reorganization of Parent or otherwise, the
reinstated Indebtedness of Parent arising as a result of such rescission or
return shall constitute Designated Parent Senior Indebtedness effective as of
the date of such rescission or return.
"EFFECTIVE TIME" means the time at which the merger of Saturn Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent,
with and into the Company, with the Company as the surviving corporation,
becomes effective.
"PARENT" means ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, a New Jersey corporation, having
its principal office at ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"PARENT RESOLUTION" means a copy of a resolution certified by the
secretary or an assistant secretary of Parent to have been duly adopted by the
board of directors or finance committee of Parent and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"PARENT OFFICERS' CERTIFICATE" means a certificate signed by two
Officers of Parent.
"PARENT SENIOR INDEBTEDNESS" means the principal of, premium, if
any, interest (including all interest accruing subsequent to the commencement
of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and
rent payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of Parent,
whether outstanding on the date of this First Supplemental Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
Parent (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the
case of any particular Indebtedness the instrument creating or evidencing the
same or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to Parent's guarantees
under Section 3.1 of this Supplemental Indenture or expressly provides that
such Indebtedness is "pari passu" or "junior" to Parent's guarantees under
Section 3.1 of this Supplemental Indenture. Notwithstanding the foregoing, the
term "Parent Senior Indebtedness" shall not include any Indebtedness of Parent
to any subsidiary of Parent, all of the outstanding voting stock of which is
owned, directly or indirectly, by Parent. If any payment made to any holder of
any Parent Senior Indebtedness or its Representative with respect to such
Parent Senior Indebtedness is rescinded or must otherwise be returned by such
holder or Representative upon the insolvency, bankruptcy or reorganization of
Parent or otherwise, the reinstated Indebtedness of Parent arising as a result
of such rescission or return shall constitute Parent Senior Indebtedness
effective as of the date of such rescission or return.
(c) Each reference to "the Company" in the definitions of the terms
"Indebtedness" and "Officer" in Section 1.1 of the Indenture is hereby deleted
and replaced with a reference to "such Person".
ARTICLE II
SECTION 2.1. CONVERSION RIGHT. Notwithstanding any provisions of the
Indenture or the Securities to the contrary, subject to and upon compliance
with the provisions of this Article II of this First Supplemental Indenture,
the Holder of any Security outstanding at the Effective Time of the Merger
shall have the right, at the Effective Time and at any time thereafter during
the period such Security shall be convertible as specified in paragraph 9 of
the Securities, to convert such Security only into an amount in cash equal to
the product of the number of shares of Company Common Stock into which such
Security was convertible immediately prior to the Effective Time and $45.00 in
cash, without interest thereon. The Company acknowledges that immediately
preceding the Effective Time the Conversion Price was $39.30 and that as a
result of the Merger each $1,000 aggregate principal amount of the Securities
shall be convertible only into the right to receive $1,145.04 in cash without
interest thereon.
SECTION 2.2. CONVERSION PROCEDURE. Notwithstanding any provisions of
the Indenture or the Securities to the contrary, in order to convert a
Security, a Holder must (1) deliver to a Conversion Agent written notice in
form satisfactory to the Company that the Holder elects to convert such
Security into cash which notice shall also state the name (with address) in
which the cash shall be issued, (2) surrender the Security to a Conversion
Agent, (3) furnish appropriate endorsements and transfer documents if required
by the Registrar or Conversion Agent, (4) pay the amount of interest, if any,
the Holder may be paid as provided in the immediately succeeding sentence of
this paragraph, and (5) pay any transfer or similar tax if required pursuant
to Section 1.3 hereof. If any Security is converted during the period from,
but excluding, a record date for the payment of interest to, but excluding,
the next succeeding interest payment date, unless such Security has been
called for redemption on a redemption date between such dates, such Security,
when surrendered for conversion, must be accompanied by payment of an amount
equal to the interest payable to the registered Holder on such interest
payment date on the principal amount so converted. Except as provided in the
immediately preceding sentence, no payment or adjustment for the principal of,
premium, if any, interest on or liquidated damages with respect to, the
Securities will be made. The following sentence does not apply in the case of
a Security or portions of a Security called for redemption or subject to
repurchase following a Change in Control during that period. A Security which
the Holder has elected to be repurchased may be converted only if the Holder
withdraws its election to have such Security repurchased in accordance with
the terms of the Indenture before the close of business on the business day
prior to the Repurchase Date. A Holder may convert a portion of a Security if
the portion is $1,000 principal amount or an integral multiple of $1,000
principal amount. Upon surrender of a Security that is converted in part the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered. If the last day
on which a Security may be converted is a Legal Holiday in a place where a
Conversion Agent is located, the Security may be surrendered to that
Conversion Agent on the next succeeding day that is not a Legal Holiday.
As soon as practicable after satisfaction of the requirements listed
above, the Company shall cause to be issued or delivered at the office of the
Conversion Agent to such Holder, or on his written order, a check representing
the amount of cash into which such Security may be converted.
SECTION 2.3. TAX CONSIDERATIONS. If a Holder converts its Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due in respect of the payment of cash upon the conversion. However, the Holder
shall pay any such tax which is due in respect of any transfer involved in the
issuance and delivery of any check in a name other than the Holder's name.
ARTICLE III
GUARANTEE
SECTION 3.1. GUARANTEE. Parent hereby unconditionally and
irrevocably guarantees, as a primary obligor and not merely as a surety, to
each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of, premium, if any, and interest (including
liquidated damages (as defined in the Indenture), if any) in respect of the
Securities when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under the
Indenture (including obligations to the Trustee) and the Securities and (b)
the full and punctual performance within applicable grace periods of all other
obligations of the Company under the Indenture and the Securities (all the
foregoing being hereinafter collectively called the "Obligations"). Parent
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from it, and that it will remain bound
under this Article III notwithstanding any extension or renewal of any
Obligation.
Parent waives presentation to, demand of payment from and protest to
the Company of any of the Obligations and also waives notice of protest for
nonpayment. Parent waives notice of any default under the Securities or the
Obligations. The obligations of Parent under this Section 3.1 shall not be
affected by (a) the failure of any Holder or the Trustee to assert any claim
or demand or to enforce any right or remedy against the Company or any other
Person under the Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any Obligation; (c) any rescission,
waiver, amendment, modification or supplement of any of the terms or
provisions of the Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations
or any of them; (e) the failure of any Holder or the Trustee to exercise any
right or remedy against any other guarantor of the Obligations; or (f) any
change in the ownership of the Company.
Parent further agrees that its guarantees under this Section 3.1
constitutes a guarantee of payment, performance and compliance when due (and
not a guarantee of collection) and waives any right to require that any resort
be had by any Holder or the Trustee to any security held for payment of the
Obligations.
The guarantee of Parent under this Section 3.1 shall, to the extent
and in the manner set forth in Article IV of this First Supplemental
Indenture, be subordinated and subject in right of payment to the prior
payment in full of all Parent Senior Indebtedness and is made subject to the
provisions of Article IV of this First Supplemental Indenture.
Except as set forth in Section 3.2 of this First Supplemental
Indenture, the obligations of Parent under this Section 3.1 shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense,
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of Parent
under this Section 3.1 shall not be discharged or impaired or otherwise
affected by any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of Parent or would otherwise operate as a discharge of
Parent as a matter of law or equity.
Parent agrees that its guarantee under this Section 3.1 shall remain
in full force and effect until payment in full of all the Obligations. Parent
further agrees that its guarantee under this Section 3.1 shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Holder or the Trustee upon the bankruptcy or reorganization of the Company
or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee may have at law or in equity against
Parent by virtue hereof, upon the failure of the Company to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
by redemption or otherwise, or to perform or comply with any other Obligation,
Parent hereby promises to and shall, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (i) the unpaid principal amount of such
Obligations, (ii) accrued and unpaid interest on such Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary Obligations of
the Company to the Holders and the Trustee.
Parent agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of all Obligations and all obligations
to which the Obligations are subordinated as provided in Article IV of this
First Supplemental Indenture. Parent further agrees that, as between it, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Obligations guaranteed hereby may be accelerated as provided
in Article VI of the Indenture for the purposes of the guarantee under this
Section 3.1, and (y) in the event of any declaration of acceleration of such
Obligations as provided in Article VI of the Indenture, such Obligations
(whether or not due and payable) shall forthwith become due and payable by
Parent for the purposes of this Section 3.1.
Parent also agrees to pay any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Section 3.1.
SECTION 3.2. LIMITATION ON LIABILITY. Any term or provision of the
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Obligations guaranteed under this Section 3.1 by Parent shall not exceed the
maximum amount that can be hereby guaranteed without rendering the Indenture,
as it relates to
Parent, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
SECTION 3.3. SUCCESSORS AND ASSIGNS. This Article III shall be
binding on Parent and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in the Indenture
and in the Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of the
Indenture.
ARTICLE IV
SUBORDINATION OF THE GUARANTEE
SECTION 4.1. Agreement to Subordinate. Parent covenants and agrees,
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees, that the
obligations of Parent under Section 3.1 of this First Supplemental Indenture
with respect to the payment of the principal of, premium, if any, and interest
(including liquidated damages (as defined in the Indenture), if any) on all
Securities (including, but not limited to, the redemption price with respect
to Securities called for redemption in accordance with Section 3.1 of the
Indenture) issued under the Indenture shall, to the extent and in the manner
set forth in this Article IV, be subordinated and subject in right of payment
to the prior payment in full of all Parent Senior Indebtedness and that the
subordination is for the benefit of the holders of Parent Senior Indebtedness.
No provision of this Article IV shall prevent the occurrence of any
default or Event of Default under the Indenture.
SECTION 4.2. PAYMENTS TO HOLDERS. Parent shall not make any payment
pursuant to its obligations under Section 3.1 of this First Supplemental
Indenture with respect to any of the Obligations (including, but not limited
to, the redemption price with respect to the Securities to be called for
redemption in accordance with Section 3.1 of the Indenture) if:
(a) a default in the payment of principal, premium, if any,
interest, rent or other obligations in respect of Parent Senior Indebtedness
occurs and is continuing (a "Parent Payment Default"), unless and until such
Parent Payment Default shall have been cured or waived or shall have ceased to
exist; or
(b) a default, other than a Parent Payment Default, on any
Designated Parent Senior Indebtedness (a "Parent Non-Payment Default") occurs
and is continuing that then permits holders of such Designated Parent Senior
Indebtedness to accelerate its maturity and the Trustee receives a written
notice of the default (a "Parent Payment Blockage Notice") from a holder of
Designated Parent Senior Indebtedness, a Representative of Designated Parent
Senior Indebtedness or Parent.
No Parent Non-Payment Default that existed or was continuing on the
date of delivery of any Parent Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Parent Payment Blockage Notice.
Parent may and shall resume payments on and distributions in respect
of the Securities pursuant to its obligations under Section 3.1 of this First
Supplemental Indenture, including any past scheduled payments of the principal
of, premium, if any, and interest (including liquidated damages (as defined in
the Indenture), if any) on such Securities to which the holders of the
Securities would have been entitled but for the provisions of this Article IV:
(1) in the case of a Parent Payment Default, on the date upon which
such Parent Payment Default is cured or waived or ceases to
exist; and
(2) in the case of a Parent Non-Payment Default, the earlier of (i)
the date upon which such default is cured or waived or ceases
to exist or (ii) 179 days after the Parent Payment Blockage
Notice is received by the Trustee if the maturity of such
Designated Parent Senior Indebtedness has not been accelerated
and no Parent Payment Default with respect to any Parent Senior
Indebtedness has occurred which has not been cured or waived or
ceased to exist (in such event clause (1) above shall instead
be applicable),
unless this Article IV otherwise prohibits such payment or distribution at the
time of such payment or distribution.
Upon any payment by Parent, or distribution of assets of Parent,
whether in cash, property or securities, to creditors upon any dissolution or
winding up or liquidation or reorganization of Parent, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Parent Senior Indebtedness shall
first be paid in full in cash or other payment satisfactory to the holders of
such Parent Senior Indebtedness, or provision is made for such payment thereof
in accordance with its terms provided for in cash or other payment
satisfactory to the holders of such Parent Senior Indebtedness, before any
payment by Parent is made on account of the principal of, premium, if any, or
interest (including liquidated damages (as defined in the Indenture), if any)
on the Securities; and upon any such dissolution or winding up or liquidation
or reorganization of Parent or bankruptcy, insolvency, receivership or other
proceeding, any payment by Parent, or distribution of assets of Parent of any
kind or character, whether in cash, property or securities, to which the
holders of the Securities or the Trustee would be entitled, except for the
provision of this Article IV, shall (except as aforesaid) be paid by Parent or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the holders of the
Securities or by the Trustee under the Indenture if received by them or it,
directly to the holders of Parent Senior Indebtedness (pro rata to such
holders on the basis of the respective amounts of Parent Senior
Indebtedness held by such holders, or as otherwise required by law or a court
order) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Parent Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all Parent Senior Indebtedness in
full in cash or other payment satisfactory to the holders of such Parent
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Parent Senior Indebtedness, before any
payment or distribution is made to the holders of the Securities or to the
Trustee.
For purposes of this Article IV, the words, "cash, property or
securities" shall not be deemed to include shares of stock of Parent as
reorganized or readjusted, or securities of Parent or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article IV with
respect to Parent's guarantees under Section 3.1 of this Supplemental
Indenture to the payment of all Parent Senior Indebtedness which may at the
time be outstanding; provided that the Parent Senior Indebtedness is assumed
by the new corporation, if any, resulting from any reorganization or
readjustment.
In the event of the acceleration of the Securities because of an
Event of Default and a demand for payment is made on Parent pursuant to
Section 3.1 of this First Supplemental Indenture, no payment or distribution
by Parent pursuant to any of its obligations under Section 3.1 of this First
Supplemental Indenture shall be made to the Trustee or any holder of
Securities in respect of the principal of, premium, if any, or interest
(including liquidated damages (as defined in the Indenture), if any) on the
Securities (including, but not limited to, the redemption price with respect
to the Securities called for redemption in accordance with Section 3.1 of the
Indenture) until all Parent Senior Indebtedness have been paid in full in cash
or other payment satisfactory to the holders of Parent Senior Indebtedness or
such acceleration is rescinded in accordance with the terms of the Indenture.
If payment of the Securities is accelerated because of an Event of Default and
a demand for payment is made on Parent pursuant to Article III of this First
Supplemental Indenture, Parent shall promptly notify holders of Parent Senior
Indebtedness of the acceleration.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of Parent, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise),
prohibited by the foregoing provisions in this Section 4.2, shall be received
by the Trustee or the holders of the Securities before all Parent Senior
Indebtedness is paid in full in cash or other payment satisfactory to the
holders of such Parent Senior Indebtedness, or provision is made for such
payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of such Parent Senior Indebtedness, such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of Parent Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Parent Senior
Indebtedness may have been issued, as their respective interests may appear,
as
calculated by Parent, for application to the payment of any Parent Senior
Indebtedness remaining unpaid to the extent necessary to pay all Parent Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Parent Senior Indebtedness, after giving effect to any concurrent payment
or distribution to or for the holders of such Parent Senior Indebtedness.
Nothing in this Section 4.2 shall apply to claims of the Trustee
under Section 7.7 of the Indenture or to payments to the Trustee made by
Parent pursuant to its obligations under Section 3.1 of this First
Supplemental Indenture with respect to Section 7.7 of the Indenture. This
Section 4.2 shall be subject to the further provisions of Section 4.5.
SECTION 4.3. SUBROGATION OF SECURITIES. Subject to the payment in
full of all Parent Senior Indebtedness, the rights of the holders of the
Securities shall be subrogated, to the extent of the payments or distributions
made to the holders of such Parent Senior Indebtedness pursuant to the
provisions of this Article IV (equally and ratably with the holders of all
indebtedness of Parent which by its express terms is subordinated to other
indebtedness of Parent to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation), to the rights of
the holders of Parent Senior Indebtedness to receive payments or distributions
of cash, property or securities of Parent applicable to the Parent Senior
Indebtedness until the principal, premium, if any, and interest (including
liquidated damages (as defined in the Indenture), if any) on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments
or distributions to the holders of the Parent Senior Indebtedness of any cash,
property or securities to which the holders of the Securities or the Trustee
would be entitled except for the provisions of this Article IV, and no payment
over pursuant to the provisions of this Article IV, to or for the benefit of
the holders of Parent Senior Indebtedness by holders of the Securities or the
Trustee, shall, as between Parent, its creditors other than holders of Parent
Senior Indebtedness, and the holders of the Securities, be deemed to be a
payment by Parent to or on account of the Parent Senior Indebtedness; and no
payments or distributions of cash, property or securities to or for the
benefit of the holders of the Securities pursuant to the subrogation
provisions of this Article IV which would otherwise have been paid to the
holders of Parent Senior Indebtedness shall be deemed to be a payment by
Parent to or for the account of the Securities. It is understood that the
provisions of this Article IV are and are intended solely for the purposes of
defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Parent Senior Indebtedness, on the other hand.
Nothing contained in this Article IV or elsewhere in this First
Supplemental Indenture, in the Indenture or in the Securities is intended to
or shall impair, as among Parent, its creditors other than the holders of
Parent Senior Indebtedness, and the holders of the Securities, the obligation
of Parent, which is absolute and unconditional, to make payments pursuant to
its obligations under Section 3.1 of this First Supplemental Indenture with
respect to the payment of the principal of, premium, if any, and interest
(including liquidated damages (as defined in the Indenture), if any) on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of Parent other than the holders of
the Parent Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon a default by Parent under its
obligations under Section 3.1 of this First Supplemental Indenture, subject to
the rights, if any, under this Article IV of the holders of Parent Senior
Indebtedness in respect of cash, property or securities of Parent received
upon the exercise of any such remedy.
SECTION 4.4. AUTHORIZATION TO EFFECT SUBORDINATION. Each holder of a
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, authorizes and directs the Trustee on the holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article IV and appoints the Trustee to act as the holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.9 of the Indenture at least thirty (30) days before
the expiration of the time to file such claim, the holders of any Parent
Senior Indebtedness or their representatives are hereby authorized to file an
appropriate claim for and on behalf of the holders of the Securities.
SECTION 4.5. NOTICE TO TRUSTEE. During any period for which a demand
for payment by Parent pursuant to Article III remains outstanding, Parent
shall give prompt written notice in the form of a Parent Officers' Certificate
to a Trust Officer of the Trustee having responsibility for the administration
of the trust established by the Indenture and to any paying agent of any fact
known to Parent which would prohibit the making of any payment of monies to or
by the Trustee or any paying agent in respect of the Securities pursuant to
the provisions of this Article IV. Notwithstanding the provisions of this
Article IV or any other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article IV, unless and until a
Trust Officer of the Trustee having responsibility for the administration of
the trust established by the Indenture shall have received written notice
thereof from Parent (in the form of a Parent Officers' Certificate) or a
holder or holders of Parent Senior Indebtedness or from any trustee thereof;
and before the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist; provided that if
on a date not less than three (3) Business Days prior to the date upon which
by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of, or premium,
if any, or interest (including liquidated damages (as defined in the
Indenture), if any) on any Security) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 4.5, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to apply monies received to the purpose for
which they were received, and shall
not be affected by any notice to the contrary which may be received by it on
or after such prior date.
The Trustee shall be entitled to conclusively rely on the delivery
to it of a written notice by a person representing himself or herself to be a
holder of Parent Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of Parent Senior
Indebtedness or a trustee on behalf of any such holder or holders. The Trustee
shall not be required to make any payment or distribution to or on behalf of a
holder of Parent Senior Indebtedness pursuant to this Article IV unless it has
received reasonably satisfactory evidence as to the amount of Parent Senior
Indebtedness held by such person, the extent to which such person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such person under this Article IV.
SECTION 4.6. TRUSTEE'S RELATION TO PARENT SENIOR INDEBTEDNESS. The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article IV in respect of any Parent Senior Indebtedness at any
time held by it, to the same extent as any other holder of Parent Senior
Indebtedness, and nothing in this First Supplemental Indenture, in Section
7.11 of the Indenture or elsewhere in the Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Parent Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article IV, and no implied
covenants or obligations with respect to the holders of Parent Senior
Indebtedness shall be read into the Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Parent Senior
Indebtedness.
SECTION 4.7. NO IMPAIRMENT OF SUBORDINATION. No right of any present
or future holder of any Parent Senior Indebtedness to enforce subordination as
provided in this Article IV shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Parent or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
Parent with the terms, provisions and covenants of the Indenture, regardless
of any knowledge thereof with which any such holder may have or otherwise be
charged.
SECTION 4.8. ARTICLE APPLICABLE TO PAYING AGENTS. If at any time any
paying agent other than the Trustee shall have been appointed by the Company
and be then acting under the Indenture, the term "Trustee" as used in this
Article IV shall (unless the context otherwise requires) be construed as
extending to and including such paying agent within its meaning as fully for
all intents and purposes as if such paying agent were named in this Article IV
in addition to or in place of the Trustee; provided, however, that the first
paragraph of Section 4.5 shall not apply to Parent or any Affiliate of Parent
if it or such Affiliate acts as paying agent.
The Trustee shall not be responsible for the actions or inactions of
any other paying agents (including Parent if acting as its own paying agent)
and shall have no control of any funds held by such other paying agents.
SECTION 4.9. PARENT SENIOR INDEBTEDNESS ENTITLED TO RELY. The
holders of Parent Senior Indebtedness (including, without limitation,
Designated Parent Senior Indebtedness) shall have the right to rely upon this
Article IV.
SECTION 4.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of Parent
referred to in this Article IV, the Trustee and the Holders shall be entitled
to conclusively rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining
the persons entitled to participate in such payment or distribution, the
holders of Parent Senior Indebtedness and other indebtedness of Parent, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article IV.
ARTICLE V
MISCELLANEOUS AMENDMENTS
SECTION 5.1. Section 3.7 is hereby amended as follows: the first,
sixth, eighth and tenth references to "the Company" are hereby deleted and
replaced with "the Company and Parent".
SECTION 5.2. Section 3.8 is hereby deleted in its entirety and
replaced with a reference to "[Reserved]".
SECTION 5.3. The first, second, third, fourth, fifth and sixth
references to "the Company" in Section 4.3 of the Indenture are hereby deleted
and replaced with references to "the Company and Parent".
SECTION 5.4. Section 9.1 of the Indenture is hereby amended so that
the beginning of the first paragraph thereof reads "Without the consent of the
Holders of the Securities, the Company when authorized by a Board Resolution,
and the Parent when authorized by a Parent Resolution, and the Trustee may".
SECTION 5.5. Section 9.2 of the Indenture is hereby amended so that
(i) the beginning of the first sentence of the first paragraph thereof reads
"The Company when authorized by a Board Resolution, and the Parent when
authorized by a Parent Resolution, and the Trustee may", (ii) "or Parent, as
the case may be," is inserted after the reference to "the Company" in the
second sentence of the first paragraph, (iii) "or Parent
Senior Indebtedness" is inserted after all references to "Senior Indebtedness"
in the second paragraph and (iv) "or the First Supplemental Indenture" is
inserted after the reference to "Section Twelve" in the second paragraph.
SECTION 5.6. Sections 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7 and
10.8 are hereby deleted in their entirety and replaced with a reference to
"[Reserved]". All references in the Indenture and the Securities to the
aforementioned Sections within said Article X of the Indenture shall be deemed
to be references to the appropriate Sections of this First Supplemental
Indenture.
SECTION 5.7. The heading and provisions of Section 12.9 of the
Indenture are hereby deleted in their entirety and replaced with a reference
to "[Reserved]".
ARTICLE VI
ACCEPTANCE OF FIRST SUPPLEMENTAL INDENTURE
SECTION 6.1. TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts this
First Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.1. EFFECTIVENESS OF FIRST SUPPLEMENTAL INDENTURE. This
First Supplemental Indenture shall be effective as of the Effective Time. In
the event the Merger Agreement shall be terminated or the Merger shall
otherwise not become effective, this First Supplemental Indenture shall be
null and void and without effect.
SECTION 7.2. EFFECT OF FIRST SUPPLEMENTAL INDENTURE. Upon the
execution and delivery of this First Supplemental Indenture by the Company,
Parent and the Trustee, the Indenture shall be supplemented and amended in
accordance herewith, and this First Supplemental Indenture shall form a part
of the Indenture for all purposes, and every Holder heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby.
SECTION 7.3. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
supplemented or amended hereby, all other provisions in the Indenture and the
Securities, to the extent not inconsistent with the terms and provisions of
this First Supplemental Indenture, shall remain in full force and effect.
SECTION 7.4. Incorporation of Indenture. All the provisions of this
First Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the
Indenture; and the Indenture, as supplemented and amended by this First
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION 7.5. ADDRESS OF PARENT FOR NOTICES. Any notice, request or
communication by Parent or the Trustee to the other is duly given if in
writing and delivered in person, mailed by first-class mail or by express
delivery to the other's address, in the case of the Trustee, stated in Section
13.2 of the Indenture or, in the case of Parent, stated below:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
If a notice or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it. All notices or
communications shall be in writing.
SECTION 7.6. HEADINGS. The headings of the Articles and Sections of
this First Supplemental Indenture are inserted for convenience of reference
and shall not be deemed to be a part thereof.
SECTION 7.7. COUNTERPARTS. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 7.8. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented and amended by this First Supplemental Indenture is
in all respects confirmed and preserved.
SECTION 7.9. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this First Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be part of and govern any provision of this First
Supplemental Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this First Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of the Trust Indenture Act shall be deemed to apply to
the Indenture as so modified or to be excluded by this First Supplemental
Indenture, as the case may be.
SECTION 7.10. SUCCESSORS. All covenants and agreements in this First
Supplemental Indenture by the Company and Parent shall be binding upon and
accrue to benefit of their respective successors. All covenants and agreements
in this First Supplemental Indenture by the Trustee shall be binding upon and
accrue to the benefit of its successors.
SECTION 7.11. SEPARABILITY CLAUSE. In case any provision in this
First Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 7.12. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE. Nothing in
this First Supplemental Indenture, the Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto
and their successors hereunder and thereunder and the holders, any benefit of
any legal or equitable right, remedy or claim under this First Supplemental
Indenture, the Indenture or the Securities.
SECTION 7.13. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
herein contained are made by the Company and Parent, and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof. The
Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 7.14. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this First Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Trustee, whether or not
elsewhere herein so provided, and the Trustee shall not be under any
responsibility to determine the correctness of any provisions contained in
this First Supplemental Indenture relating to the amount of cash receivable by
Holders upon the conversion of their Securities.
SECTION 7.15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, SHALL GOVERN THIS FIRST
SUPPLEMENTAL INDENTURE.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
SCIOS INC.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
General Counsel
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Trustee,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President