NINTH SUPPLEMENTAL INDENTURE
Exhibit 99.1
THIS NINTH SUPPLEMENTAL INDENTURE, dated as of June 12, 2007 (this “Ninth Supplemental
Indenture”), to the Indenture (as defined below), is hereby entered into by and among Inverness
Medical Innovations, Inc., a Delaware corporation (the “Issuer”), the Guarantors (as defined in the
Indenture) and U.S. Bank Trust National Association (the “Trustee”).
RECITALS
WHEREAS, the Issuer has issued its 8 3/4% Senior Subordinated Notes due 2012 (the
“Notes”) in the aggregate principal amount of $150,000,000 under and pursuant to the Indenture,
dated as of February 10, 2004, among the Issuer, the Guarantors listed therein and the Trustee, as
amended or supplemented (the “Indenture”).
WHEREAS, unless the context requires otherwise, all capitalized terms used but not otherwise
defined herein will have the meanings ascribed thereto in the Indenture.
WHEREAS, the Board of Directors of the Issuer has authorized the Issuer to make an offer to
purchase any and all of the outstanding Notes from each Holder thereof and solicit the consent of
the Holders to amend the Indenture to, among other things, eliminate substantially all of the
restrictive covenants of the Notes thereunder (the “Tender Offer and Consent Solicitation”);
WHEREAS, as of the date hereof, a Change of Control has not occurred since the original
execution of the Indenture;
WHEREAS, in connection with the Tender Offer and Consent Solicitation, Holders of a majority
in aggregate principal amount of the Notes have consented to this Ninth Supplemental Indenture.
WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer, the Guarantors and the Trustee
may enter into this Ninth Supplemental Indenture.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
AMENDMENTS
Section 1.01. Deletion of Certain Definitions. Sections 1.01 and 1.02 of the Indenture are hereby
amended by deleting the definition of each term that is used in the Indenture only in
the Sections or portions of Sections thereof that are deleted pursuant to Article I
hereof.
Section 1.02. Deletion of Certain Sections. Each of the following Sections of the Indenture is
hereby amended by deleting the text of such Section in its entirety and replacing such
text, in each case, with the words “Intentionally Omitted”:
| Section 4.03 | Corporate Existence | |||
| Section 4.04 | Payment of Taxes | |||
| Section 4.06 | Waiver of Stay, Extension or Usury Laws | |||
| Section 4.07 | Change of Control | |||
| Section 4.08 | Limitations on Additional Indebtedness | |||
| Section 4.09 | Limitations on Restricted Payments | |||
| Section 4.10 | Limiations on Liens | |||
| Section 4.11 | Limiations on Asset Sales | |||
| Section 4.12 | Limiations on Transactions with Affiliates | |||
| Section 4.13 | Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries | |||
| Section 4.14 | Additional Note Guarantees | |||
| Section 4.15 | Limitation on Layering Indebtedness | |||
| Section 4.16 | Reports to Holders | |||
| Section 4.18 | Limitations on the Issuance or Sale of Equity Interests of Restricted Subsidiaries | |||
| Section 4.19 | Conduct of Business | |||
| Section 4.20 | Limitation on Sale and Leaseback Transactions |
Any corresponding provisions reflected in the Notes shall also be deleted and replaced with
“Intentionally Deleted.” Effective as of the date hereof, none of the Issuer, the
Guarantors, the Trustee or any other parties to or beneficiaries of the Indenture or the Notes
shall have any rights, obligations or liabilities under such deleted Sections, and such Sections
shall not be considered in determining whether a Default or Event of Default has occurred or
whether the Issuer or the Guarantors has observed, performed and complied with the provisions of
the Indenture and the Notes.
Section 1.03. Amendment to Section 4.05. Section 4.05 of the Indenture is hereby amended by
deleting the text of such Section in its entirety and replacing such text with the
following: “The Company shall, so long as any of the Notes are outstanding, comply
with Section 314 of the Trust Indenture Act.”
| Section 1.04. Amendment to Section 4.17. Section 4.17 of the Indenture is hereby amended and restated in its entirety as follows: |
“SECTION 4.17. Limitations on Designations of Unrestricted Subsidiaries.
(a) The Issuer may designate any Subsidiary of the Issuer as an “Unrestricted
Subsidiary” under this Indenture (a “Designation”) only if no Default shall have
occurred after giving effect to such Designation. The Issuer may redesignate an
Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if no
Default shall have occurred after giving effect to such Redesignation. All
Designations and Redesignations must be evidenced by
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resolutions of the Board of Directors of the Issuer, delivered to the Trustee certifying compliance with the
foregoing provisions.”
Section 1.05. Amendment to Section to 5.01. Section 5.01 of the Indenture is hereby amended and
restated in its entirety as follows:
“SECTION 5.01. Mergers, Consolidations, Etc.
(a) The Issuer will not, directly or indirectly, in a single transaction or a
series of related transactions, (1) consolidate or merge with or into (other than a
merger with a Wholly-Owned Restricted Subsidiary solely for the purpose of changing
the Issuer’s jurisdiction of incorporation to another State of the United States),
or sell, lease, transfer, convey or otherwise dispose of or assign all or
substantially all of the assets of the Issuer or the Issuer and the Restricted
Subsidiaries (taken as a whole) or (2) effect a Plan of Liquidation unless, in
either case:
(i) either:
(x) the Issuer will be the surviving or continuing Person; or
(y) the Person formed by or surviving such consolidation or merger or to which
such sale, lease, conveyance or other disposition shall be made (or, in the case of
a Plan of Liquidation, any Person to which assets are transferred) (collectively,
the “Successor”) expressly assumes, by supplemental indenture in form and substance
satisfactory to the Trustee, all of the obligations of the Issuer under the Notes,
this Indenture and the Registration Rights Agreement; and
(ii) immediately after giving effect to such transaction and the assumption of
the obligations as set forth in clause (i)(y) above and the incurrence of any
Indebtedness to be incurred in connection therewith, no Default shall have occurred
and be continuing.
(b) Except as provided under Article Eleven, no Guarantor may consolidate with
or merge with or into (whether or not such Guarantor is the surviving Person)
another Person (other than the Issuer or another Guarantor), whether or not
affiliated with such Guarantor, unless:
(1) either:
(i) such Guarantor will be the surviving or continuing Person; or
(ii) the Person formed by or surviving any such consolidation or merger
assumes, by supplemental indenture in form and
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substance satisfactory to the Trustee, all of the obligations of such Guarantor under the Note Guarantee of such
Guarantor, this Indenture and the Registration Rights Agreement; and
(2) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing.
(c) Except as provided under Article Eleven, upon any consolidation,
combination or merger of the Issuer or a Guarantor, or any transfer of all or
substantially all of the assets of the Issuer in accordance with the foregoing, in
which the Issuer or such Guarantor is not the continuing obligor under the Notes or
its Note Guarantee, the surviving entity formed by such consolidation or into which
the Issuer or such Guarantor is merged or to which the conveyance, lease or transfer
is made will succeed to, and be substituted for, and may exercise every right and
power of, the Issuer or such Guarantor under this Indenture, the Notes and the Note
Guarantees with the same effect as if such surviving entity had been named therein
as the Issuer or such Guarantor and, except in the case of a conveyance, transfer or
lease, the Issuer or such Guarantor, as the case may be, will be released from the
obligation to pay the principal of and interest on the Notes or in respect of its
Note Guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s
other obligations and covenants under the Notes, this Indenture and its Note
Guarantee, if applicable.
(d) Notwithstanding the foregoing, any Restricted Subsidiary may merge into the
Issuer or another Restricted Subsidiary.”
Section 1.06. Amendment to Section 6.01. Section 6.01 of the Indenture is hereby amended and
restated in its entirety as follows:
“SECTION 6.01. Events of Default.
Each of the following is an “Event of Default”:
(1) failure by the Issuer to pay interest on any of the Notes when it becomes
due and payable and the continuance of any such failure for 30 days (whether or not
such payment is prohibited by the subordination provisions of this Indenture);
(2) failure by the Issuer to pay the principal on any of the Notes when it
becomes due and payable, whether at Stated Maturity, upon redemption, upon purchase,
upon acceleration or otherwise (whether or not such payment is prohibited by the
subordination provisions of this Indenture);
(3) failure by the Issuer to comply with any other agreement or covenant in
this Indenture and the continuance of any such failure for 30 days after notice of
such failure has been given to the Issuer by the Trustee or by the
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Holders of at least 25% of the aggregate principal amount of the Notes then outstanding;
(4) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant Subsidiary as debtor in
an involuntary case,
(ii) appoints a Custodian of the Issuer or any Significant Subsidiary or a
Custodian for all or substantially all of the assets of the Issuer or any
Significant Subsidiary, or
(iii) orders the liquidation of the Issuer or any Significant Subsidiary, and
the order or decree remains unstayed and in effect for 60 days; or
(5) (a) any Note Guarantee of any Significant Subsidiary ceases to be in full
force and effect (other than in accordance with the terms of such Note Guarantee and
this Indenture) or is declared null and void and unenforceable or found to be
invalid and such Event of Default remains uncured for a period of 30 days, or (b)
any Guarantor denies its liability under its Note Guarantee (other than by reason of
release of a Guarantor from its Note Guarantee in accordance with the terms of this
Indenture and the Note Guarantee).”
ARTICLE II
MISCELLANEOUS
MISCELLANEOUS
Section 2.01. Duplicates. All parties may sign any number of copies of this Ninth Supplemental
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
Section 2.02. Successors and Assigns. All agreements of the Issuer and the Guarantors in this
Ninth Supplemental Indenture shall bind their respective successors. All agreements
of the Trustee in this Ninth Supplemental Indenture shall bind its successor.
Section 2.03. Severability. To the extent permitted by applicable law, in case any one or more of
the provisions in this Ninth Supplemental Indenture shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to the full extent permitted by
law.
Section 2.04. Governing Law. This Ninth Supplemental Indenture will be governed by and construed
in accordance with the laws of the State of New York.
Section 2.05. Notation on Notes. Pursuant to Section 9.06 of the Indenture, new Notes reflecting
the amendments to the Indenture made hereby shall not be issued; however,
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corresponding changes to the Notes to reflect the amendments made hereby shall be
deemed to be made to the Notes as of the date of this Ninth Supplemental Indenture.
The Trustee may, but shall not be required to, place an appropriate notation as to
this Ninth Supplemental Indenture on any Note hereafter authenticated in accordance
with Section 9.06 of the Indenture.
Section 2.06. Effectiveness of Ninth Supplemental Indenture. Notwithstanding anything to the
contrary contained herein, this Ninth Supplemental Indenture shall become operative
upon the acceptance by the Issuer of the Notes tendered in connection with the Tender
Offer and Consent Solicitation, provided, however, that this Ninth Supplemental
Indenture will cease to be operative if the Issuer fails to purchase outstanding Notes
comprising a majority in aggregate principal amount of the outstanding Notes issued
under the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the date first written above.
| INVERNESS MEDICAL INNOVATIONS, INC., as Issuer |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
| ADVANTAGE DIAGNOSTICS CORPORATION, APPLIED BIOTECH, INC., BINAX, INC., FIRST CHECK DIAGNOSTICS CORP., FOREFRONT DIAGNOSTICS, INC., INNOVACON, INC., INNOVATIONS RESEARCH, LLC, INSTANT TECHNOLOGIES, INC., INVERNESS MEDICAL — BIOSTAR INC., INVERNESS MEDICAL LLC (formerly known as Inverness Medical, Inc.), INVERNESS MEDICAL INTERNATIONAL HOLDING CORP., INVERNESS MEDICAL INTERNATIONAL HOLDING CORP. II, ISCHEMIA TECHNOLOGIES, INC., IVC INDUSTRIES, INC., OSTEX INTERNATIONAL, INC., SELFCARE TECHNOLOGY, INC., UNIPATH ONLINE, INC., XXXXXXX LABORATORIES, LLC and SPDH, INC. as Guarantors |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Finance; Vice President; Vice President, Finance; Vice President, Finance; Vice President; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President, Finance; President; President; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President; Vice President; and President respectively | |||
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee |
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| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
