EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
This Supplemental Indenture (the "Supplemental Indenture") dated as of
December 31, 2004, supplements, amends and modifies that certain Indenture (the
"Indenture") dated as of July 9, 2001 among Matria Healthcare, Inc., a Delaware
corporation (the "Issuer"), Matria Holding Company, Inc., a Delaware corporation
("Holdco"), the subsidiary Guarantors listed therein and Xxxxx Fargo Bank, N.A.,
a national banking association, as Trustee.
WHEREAS, the Issuer, Holdco and Matria MergerSub, Inc., a Delaware
corporation and an indirect, wholly owned subsidiary of Holdco ("MergerSub"),
have executed and delivered an Agreement of Merger and Plan of Reorganization
dated as of December 30, 2004 pursuant to which MergerSub will be merged with
and into the Issuer (the "Merger"), which will be the corporation surviving the
Merger, and the outstanding capital stock of the Issuer will be converted into
capital stock of Holdco.
WHEREAS, to effect the Merger, the Issuer has incorporated Holdco as a
direct, wholly-owned subsidiary, which in turn has incorporated MergerSub.
WHEREAS, as a result of effectuation of the Merger, Holdco will become a
holding company and the Issuer will become a direct wholly-owned subsidiary of
Holdco.
WHEREAS, the Merger will be effected pursuant to Section 251(g) of the
General Corporation Law of the State of Delaware ("DGCL"), which permits
effectuation of such a merger without a vote of stockholders of either
constituent corporation.
WHEREAS, pursuant to the Merger, the corporate name of the Issuer will be
changed to "Matria Women's and Children's Health, Inc." and immediately
thereafter, the corporate name of Holdco will be changed to "Matria Healthcare,
Inc."
WHEREAS, the Issuer has outstanding certain indebtedness issued pursuant
to the Indenture and Holdco and the Issuer intend that Holdco will assume the
obligations of the Issuer with respect to such indebtedness and with respect to
the Indenture and that the Issuer's sole obligations with respect to such
indebtedness and with respect to the Indenture shall be that of Guarantor.
NOW, THEREFORE, in consideration of the premises, the covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the parties hereto
covenant and agree as follows:
ARTICLE I
Section 1.1 Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Indenture.
Section 1.2 Notes. Pursuant to Section 5.01 and 5.02 of the Indenture,
Holdco shall, effective as of the effective time of the Merger under the DGCL
(the "Effective Time"), assume, and shall thereafter timely pay, perform and
discharge, each and every obligation of the Issuer under and with respect to
those certain 11% Series B Senior Notes due 2008 (the "Notes") issued by the
Issuer in an aggregate principal amount of $120.0 million pursuant to the
Indenture, $2.0 million of which remain outstanding.
Section 1.3 Indenture. Pursuant to Section 5.01 and 5.02 of the Indenture,
Holdco shall, effective as of the Effective Time, assume, and shall thereafter
timely pay, perform and discharge, each and every obligation of the Issuer under
and with respect to the Indenture. From and after the Effective Time, Issuer's
obligation to pay, perform or discharge any indebtedness issued under the
Indenture shall be that of Guarantor.
ARTICLE II
Section 2.1 Effectiveness. Although this Supplemental Indenture may be
executed and delivered by the parties hereto prior to the Effective Time, the
provisions hereof shall not become effective unless and until the Merger becomes
effective under the DGCL and, under such circumstances, shall become effective
concurrently with the Effective Time of such Merger. From and after the
Effective Time, the Indenture, as hereby supplemented, amended and modified,
shall remain in full force and effect.
Section 2.2 References. Each reference in the Indenture or this
Supplemental Indenture to any article, section, term or provision of the
Indenture shall mean and be deemed to refer to such article, section, term or
provision of the Indenture, as modified by this Supplemental Indenture, except
where the context otherwise indicates.
Section 2.3 Benefit. All the covenants, provisions, stipulations and
agreements contained in this Supplemental Indenture are and shall be for the
sole and exclusive benefit of the parties hereto, their successors and assigns,
and of the holders and registered owners from time to time of the Notes as
hereby amended and supplemented.
Section 2.4 Receipt by Trustee. In accordance with Section 11.04 and 11.05
of the Indenture, the Trustee acknowledges that it has received an Officer's
Certificate and Opinion of Counsel stating that the execution of this
Supplemental Indenture is permitted by the Indenture and all conditions
precedent and covenants relating to the execution of this Supplemental Indenture
have been satisfied.
Section 2.5 The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity, legality or sufficiency of
this Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by Issuer and Holdco.
Section 2.6 Parties. Nothing expressed or mentioned herein is intended or
shall be construed to give any Person other than the Holders and the Trustee,
any legal or equitable right,
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remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.
Section 2.7 Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be deemed an original and all of
which taken together shall be deemed to be a single instrument.
Section 2.8 Governing Law. This Supplemental Indenture shall be deemed to
be a contract under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such state without regard to
principles of conflicts of laws, except as may otherwise required by mandatory
provisions of law.
Section 2.9 Separability. Each provision of this Supplemental Indenture
shall be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this 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 2.10 Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 2.11 Ratification of Indenture; Supplemental Indenture Part of
Indenture. Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
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IN WITNESS WHEREOF, Matria Healthcare, Inc., Matria Holding Company, the
subsidiary guarantors and Xxxxx Fargo Bank, N.A. have each caused this
Supplemental Indenture to be executed in its corporate name by the officer whose
name is subscribed below, all as of the day and year first above written.
MATRIA HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
MATRIA HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
DIABETES ACQUISITION, INC.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
DIABETES SELF CARE, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
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DIABETES MANAGEMENT SOLUTIONS, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
FACET TECHNOLOGIES, L.L.C
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
XXXXXX MEDICAL ACQUISITION COMPANY
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
XXXXXX MEDICAL INTERNATIONAL, L.L.C.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
XXXXXX MEDICAL DIRECT, L.L.C.
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/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
INFERTILITY MANAGEMENT SERVICES, INC.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
XXXXXXXXXX.XXX, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
MATRIA LABORATORIES, INC.
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
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PFCC LIQUIDATION CORP.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
PFPC LIQUIDATION CORP.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
PFMG LIQUIDATION CORP.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Secretary
NATIONAL REPRODUCTIVE MEDICAL CENTERS, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Xxxxxxx X. XxXxx
Secretary
Q LIQUIDATION CORP.
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/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Xxxxxxx X. XxXxx
Secretary
QUALITY ONCOLOGY, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
Chairman
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Xxxxxxx X. XxXxx
Secretary
SHARED CARE, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
President
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Xxxxxxx X. XxXxx
Secretary
XXXXX FARGO BANK, N.A., as Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Assistant Vice President
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