SUPPLEMENTAL INDENTURE
Exhibit (d)(4)
SUPPLEMENTAL INDENTURE, dated as of May 9, 2005 (this “Supplemental Indenture”), by
and between Xxxxxx Scientific International Inc., a Delaware corporation (the “Company”),
having its principal xxxxxx xx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000 and X.X. Xxxxxx Trust
Company, National Association, a national banking association organized and existing under the laws
of the United States, as Trustee (the “Trustee”) to the Indenture (as defined below),
having its principal corporate trust office at Four New York Plaza, 15th Floor, New
York, New York 10004.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture,
dated as of July 7, 2003 (the “Indenture”), pursuant to which the Company issued $300
million aggregate principal amount of 2.50% Convertible Senior Notes due 2023 (the
“Notes”);
WHEREAS, Section 13.1 of the Indenture provides that the Company may amend the Indenture
without the consent of Holders in any manner necessary or desirable and that will not adversely
affect the rights of any Holder of the Notes;
WHEREAS, Sections 9.2 and 9.16 of the Indenture permit the Company, at its option, to settle
conversions of the Notes in Common Stock, in cash or in a combination of cash and Common Stock; and
WHEREAS, pursuant to the terms of the Indenture, the Company seeks to amend the Indenture to
limit the Company’s right to settle any conversion of the Notes through delivery of shares of
Common Stock and has requested the Trustee’s participation in such amendment.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the
Trustee mutually covenant and agree, for the equal and ratable benefit of the Holders of the Notes,
as follows:
ARTICLE I — AMENDMENTS
Section 1.1 Amendment to Section 9.2. Section 9.2 of the Indenture is hereby replaced
in its entirety with the following:
“Section 9.2. Conversion Procedures. To convert Notes, a Holder must satisfy the
requirements in this Section 9.2 and in paragraph 8 of the Notes. The date on which the Holder
satisfies all those requirements and delivers an irrevocable conversion notice, together, if the
Notes are in certificated form, with the certificated Note, to the Conversion Agent along with
appropriate endorsements and transfer documents, if required, and pay any transfer or similar tax,
if required, is the conversion date (the
“Conversion Date”). As soon as practicable, but in no event later than the fifth Business Day
following the Conversion Date, the Company shall deliver to the Holder, through the Conversion
Agent, cash or a combination of cash and shares of Common Stock as set forth in Section 9.16 and
cash in lieu of any fractional share determined by Section 9.3. The Person in whose name the
certificate is registered shall be treated as a stockholder of record on and after the Conversion
Date; provided, however, that no surrender of Notes on any date when the stock transfer books of
the Company shall be closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective to constitute the Person
or Persons entitled to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which such stock transfer
books are open; such conversion shall be at the Conversion Rate in effect on the date that such
Notes shall have been surrendered for conversion, as if the stock transfer books of the Company had
not been closed. Upon conversion of Notes, such Person shall no longer be a Holder of such Notes.
No payment or adjustment shall be made for dividends on or other distributions with respect to
any Common Stock except as provided in Section 9.6 or as otherwise provided in this Indenture.
On conversion of Notes, that portion of accrued interest, if any, with respect to the
converted Notes shall not be canceled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of cash or a combination of cash and Common
Stock in exchange for the Notes being converted pursuant to the provisions hereof, and the cash
shall be treated as issued, to the extent thereof, first in exchange for the principal amount of
the Notes being converted pursuant to the provisions hereof and the balance, if any, of such cash
or the Fair Market Value of such shares of Common Stock shall be treated as issued in exchange for
interest accrued and unpaid through the Conversion Date. Notwithstanding conversion of any Notes,
the Holders of the Notes and any Common Stock issuable upon conversion thereof will continue to be
entitled to receive Liquidated Damages in accordance with the Registration Rights Agreement.
If a Holder converts more than one Note at the same time, the cash or the combination of cash
and shares of Common Stock issuable upon the conversion shall be based on the total principal
amount of the Notes converted.
Upon surrender of a Note that is converted in part, the Company shall execute, and the Trustee
or the Authenticating Agent shall authenticate and deliver to the Holder, a new Note in an
authorized denomination equal in principal amount to the unconverted portion of the Note
surrendered.
If the last day on which Notes may be converted is not a Business Day in a place where a
Conversion Agent is located, the Notes may be surrendered to that Conversion Agent on the next
succeeding Business Day.
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Holders that have already delivered a Change in Control Purchase Notice with respect to a
Note, may not surrender such Note for conversion until the Change in Control Purchase Notice has
been withdrawn in accordance with the procedures set forth in Section 8.2.”
Section 1.2 Amendment of Section 9.16. Section 9.16 of the Indenture is hereby
replaced in its entirety with the following:
“Section 9.16. Payment of Cash in Lieu of Common Stock. If a Holder elects to
convert all or any portion of a Note as set forth in Section 9.1 and delivers an irrevocable
conversion notice, together, if the Notes are in certificated form, with the certificated Note as
set forth in Section 9.2, on or prior to the day that is 20 days prior to the maturity of the Notes
(the “Final Notice Date”), the Company may choose to satisfy all or any portion of its conversion
obligation (the “Conversion Obligation”) in cash or a combination of cash and Common Stock. Upon
such election, the Company will notify such Holder through the Trustee of the dollar amount to be
satisfied in cash (which must be expressed either as 100% of the Conversion Obligation or as a
fixed dollar amount) at any time on or before the date that is two Business Days following receipt
of written notice of conversion as specified in Section 9.2 (such period, the “Cash Settlement
Notice Period”). A Holder may retract the conversion notice at any time during the two Business
Day period beginning on the day after the final day of the Cash Settlement Notice Period (a
“Conversion Retraction Period”). If the conversion notice has not been retracted, then settlement
(in cash and/or Common Stock) will occur on the Business Day following the final day of the ten
Trading Day period beginning on the day after the final day of the Conversion Retraction Period
(the “Cash Settlement Averaging Period”). Settlement amounts will be computed as follows:
(a) if the Company elects to satisfy the entire Conversion Obligation in cash, the Company
will deliver to such Holder cash in an amount equal to the product of: (1) a number equal to (x)
the aggregate original principal amount of Notes to be converted divided by 1,000, multiplied by
(y) the Conversion Rate, and (2) the average of the Last Reported Sale Prices of the Common Stock
during the Cash Settlement Averaging Period; and
(b) if the Company elects to satisfy a fixed portion (other than 100%) of the Conversion
Obligation in cash, the Company will deliver to such Holder such cash amount (“Partial Cash
Amount”) and a number of shares of Common Stock equal to the greater of (1) zero and (2) the
excess, if any, of (A) the number of shares of Common Stock equal to (i) the aggregate principal
amount of Notes to be converted, divided by $1,000, multiplied by (ii) the Conversion Rate over (B)
the number of shares equal to the sum, for each day of the Cash Settlement Averaging Period, of (x)
10% of the Partial Cash Amount, divided by (y) the closing price of the Common Stock on such day.
In no event shall the Partial Cash Amount be less than the aggregate principal amount of the Notes
to be converted.
If a Holder elects to convert all or any portion of a Note as set forth in Section 9.2 after
the Final Notice Date and the Company chooses to satisfy all or any
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portion of the Conversion Obligation in cash, the Company will notify such Holder through the
Trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the
Conversion Obligation or as a fixed dollar amount) at any time on or before the Final Notice Date.
Settlement amounts will be computed and settlement dates will be determined in the same manner as
set forth in the immediately preceding paragraph, except that the Cash Settlement Averaging Period
shall be the ten Trading Day period beginning on the date after receipt of the Holder’s conversion
notice (or in the event the Company receives such Holder’s conversion notice on the Business Day
prior to the maturity date of the Note, the ten Trading Day period beginning on the day after such
maturity date). Settlement (in cash and/or shares of Common Stock) will occur on the Business Day
following the final day of such Cash Settlement Averaging Period.”
Section 1.3 Notes Deemed Conformed. As of the date hereof, the provisions of the
Notes shall be deemed to be conformed, without the necessity for any reissuance or exchange of such
Note or any other action on the part of the Holders of Notes, the Company or the Trustee, so as to
reflect this Supplemental Indenture.
ARTICLE II — MISCELLANEOUS
Section 2.1 Effect of Supplemental Indenture. Upon execution of this Supplemental
Indenture by the Company and the Trustee, the Indenture and the Notes shall be supplemented in
accordance herewith, and this Supplemental Indenture shall form a part of the Indenture and the
Notes for all purposes, and every Holder of Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
Section 2.2 Indenture Remains in Full Force and Effect. Except as supplemented by
this Supplemental Indenture, all provisions in the Indenture and the Notes shall remain in full
force and effect.
Section 2.3 References to Supplemental Indenture. Any and all notices, requests,
certificates and other instruments executed and delivered after the execution and delivery of this
Supplemental Indenture may refer to the Indenture without making specific reference to this
Supplemental Indenture, but nevertheless all such references shall include this Supplemental
Indenture unless the context requires otherwise.
Section 2.4 Conflict with Trust Indenture Act. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the TIA that is required under the
TIA to be part of and govern any provision of this Supplemental Indenture, the provision of the TIA
shall control. If any provision of this Supplemental Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
Section 2.5 Severability. If any court of competent jurisdiction shall determine that
any provision in this Supplemental Indenture shall be invalid, illegal or
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unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 2.6 Terms Defined in the Indenture. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Indenture.
Section 2.7 Headings. The Article and Section headings of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a part of this
Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 2.8 Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture or the Notes, express or implied, shall give to any Person, other than the parties hereto
and thereto and their successors hereunder and thereunder and the Holders of the Notes any benefit
of any legal or equitable right, remedy or claim under the Indenture, this Supplemental Indenture
or the Notes.
Section 2.9 Successors. All agreements of the Company in this Supplemental Indenture
shall bind their respective successors. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
Section 2.10 Trustee Not Responsible for Recitals. The recitals contained herein
shall be taken as the statements of the Company and the Trustee assumes no responsibility for their
correctness.
Section 2.11 Certain Duties and Responsibilities of the Trustee. In entering into
this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the
Indenture and the Notes relating to the conduct or affecting the liability or affording protection
to the Trustee, whether or not elsewhere herein so provided, including, specifically, the
provisions related to indemnity provided in Section 11.7 of the Indenture.
Section 2.12 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 2.13 Counterpart Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
Section 2.14 Effectiveness. This Supplemental Indenture shall become effective upon
execution by the Company and the Trustee.
Section 2.15 Confirmation. Each of the Company and the Trustee hereby confirms and
reaffirms the Indenture in every particular except as amended and supplemented by this Supplemental
Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
| XXXXXX SCIENTIFIC INTERNATIONAL INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President, Chief Financial Officer | |||
| X. X. Xxxxxx Trust Company, National Association, | ||||||
| as Trustee | ||||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||||
| Name: | Xxxxxxxx Xxxxxxxx | |||||
| Title: | Vice President | |||||
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