Exhibit 4.1
SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of March 14, 2007 (this "Sixth
Supplemental Indenture"), to the Indenture (as defined below), among Inverness
Medical Innovations, Inc., a Delaware corporation (the "Issuer"), the Guarantors
(as defined in the Indenture), First Check Diagnostics Corp., a Delaware
corporation (the "Additional Guarantor") and U.S. Bank Trust National
Association, as Trustee (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 Additional Guarantor has become a Restricted Subsidiary and
pursuant to Section 4.14 of the Indenture is entering into this Sixth
Supplemental Indenture to thereby become a Guarantor as provided in Article
Eleven of the Indenture.
WHEREAS, pursuant to Section 9.01(5) of the Indenture, the Issuer, the
Guarantors, the Additional Guarantor and the Trustee may enter into this Sixth
Supplemental Indenture without the consent of any Holder.
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
ADDITIONAL GUARANTOR
SECTION 1.01. ADDITIONAL GUARANTOR. The Additional Guarantor hereby agrees,
jointly and severally with all of the Guarantors, to unconditionally guarantee
all of the Issuer's obligations under the Notes and the Indenture as a Guarantor
thereunder on the terms and subject to the conditions set forth in the Indenture
and to be bound by all provisions of the Indenture applicable to a Guarantor.
SECTION 1.02. SIXTH SUPPLEMENTAL INDENTURE. This Sixth Supplemental
Indenture is supplemental to, and is entered into, in accordance with Section
9.01 of the Indenture, and except as modified, amended and supplemented by this
Sixth Supplemental Indenture, the provisions of the Indenture will remain in
full force and effect.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. DUPLICATES. All parties may sign any number of copies of this
Sixth 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, the
Guarantors and the Additional Guarantor in this Sixth Supplemental Indenture
shall bind their respective successors. All agreements of the Trustee in this
Sixth 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 Sixth 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 Sixth Supplemental Indenture will be
governed by and construed in accordance with the laws of the State of New York.
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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
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer and
Treasurer
ADVANTAGE DIAGNOSTICS CORPORATION,
APPLIED BIOTECH, INC.,
BINAX, INC.,
FOREFRONT DIAGNOSTICS, INC.,
INNOVACON, INC.,
INNOVATIONS RESEARCH, LLC,
INVERNESS MEDICAL - BIOSTAR INC.,
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. and
XXXXXXX LABORATORIES, LLC,
as Guarantors
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President, Finance;
Vice President; Vice President,
Finance; Vice President;
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; and
Vice President, respectively
FIRST CHECK DIAGNOSTICS CORP.
as Additional Guarantor
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President, Finance
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
