SEVENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 1, 2010, among LABORATORY SPECIALISTS OF AMERICA, INC., KROLL LABORATORY SPECIALISTS, INC. AND SCIENTIFIC TESTING LABORATORIES, INC. (collectively, the “New...
Exhibit 4.9
SEVENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 1,
2010, among LABORATORY SPECIALISTS OF AMERICA, INC., KROLL LABORATORY SPECIALISTS, INC. AND
SCIENTIFIC TESTING LABORATORIES, INC. (collectively, the “New Guarantors”), Subsidiaries of
Inverness Medical Innovations, Inc. (or its successor) (the “Issuer”), INVERNESS MEDICAL
INNOVATIONS, INC., a Delaware corporation, each of the Guarantors (the “Existing Guarantors”) under
the Indenture referred to below, and U.S. BANK NATIONAL ASSOCIATION, as Trustee under the Indenture
referred to below (the “Trustee”).
WITNESSETH:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an Indenture dated as
of May 12, 2009, as amended, supplemented and modified by a First Supplemental Indenture dated as
of May 12, 2009, a Second Supplemental Indenture dated as of June 9, 2009, a Third Supplemental
Indenture dated as of August 4, 2009, a Fourth Supplemental Indenture dated as of September 22,
2009, a Fifth Supplemental Indenture dated as of November 25, 2009, and a Sixth Supplemental
Indenture dated as of February 1, 2010 (as so amended, supplemented and modified, and as further
amended, supplemented or modified to date, the “Indenture”), by and among the Issuer, the Existing
Guarantors and the Trustee, providing for the issuance of 9.00% Senior Subordinated Notes due 2016
(the “Notes”);
WHEREAS Section 4.13 of the Indenture provides that under certain circumstances the Issuer is
required to cause each of the New Guarantors to execute and deliver to the Trustee a supplemental
indenture pursuant to which each of the New Guarantors shall unconditionally and irrevocably
guarantee all of the Issuer’s obligations under the Notes pursuant to a guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the Existing
Guarantors are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each of the New Guarantors, the
Trustee, the Issuer and the Existing Guarantors mutually covenant and agree for the equal and
ratable benefit of the Holders as follows:
SECTION 1. Definitions. For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as corresponding terms and expressions used in
the Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
SECTION 2. Agreement to Guarantee. Each of the New Guarantors hereby unconditionally
and irrevocably agrees, jointly and severally with all other Guarantors, to guarantee the Issuer’s
obligations under the Notes and the Indenture on the terms and subject to the conditions set forth
in Article Eleven of the Indenture and to be bound by all other applicable provisions of the
Indenture.
SECTION 3. Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly amended 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.
SECTION 4. Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, but without giving effect to
applicable principles of conflicts of laws to the extent that the application of the laws of
another jurisdiction would be required thereby.
SECTION 5. Trustee Makes No Representation. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture.
SECTION 6. Counterparts. 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 7. Effect of Headings. The Section headings herein are for convenience only
and shall not effect the construction thereof.
[Signature Page Follows]
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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.
| NEW GUARANTORS: LABORATORY SPECIALISTS OF AMERICA, INC., as a New Guarantor |
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| By: | /s/ Xxx XxXxxxxx | |||
| Name: | Xxx XxXxxxxx | |||
| Title: | Assistant Secretary | |||
| KROLL LABORATORY SPECIALISTS, INC., as a New Guarantor |
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| By: | /s/ Xxx XxXxxxxx | |||
| Name: | Xxx XxXxxxxx | |||
| Title: | Assistant Secretary | |||
| SCIENTIFIC TESTING LABORATORIES, INC., as a New Guarantor |
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| By: | /s/ Xxx XxXxxxxx | |||
| Name: | Xxx XxXxxxxx | |||
| Title: | Assistant Secretary | |||
Signature Page to Seventh Supplemental Indenture
| ISSUER: INVERNESS MEDICAL INNOVATIONS, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
Signature Page to Seventh Supplemental Indenture
EXISTING GUARANTORS: ALERE HEALTH, LLC ALERE HEALTHCARE OF ILLINOIS, INC. ALERE HEALTH IMPROVEMENT COMPANY ALERE HEALTH SYSTEMS, INC. ALERE MEDICAL, INC. ALERE WELLOLOGY, INC. ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC AMEDITECH INC. APPLIED BIOTECH, INC. BINAX, INC. BIOSITE INCORPORATED CHOLESTECH CORPORATION FIRST CHECK DIAGNOSTICS CORP. FIRST CHECK ECOM, INC. FREE & CLEAR, INC. GENECARE MEDICAL GENETICS CENTER, INC. HEMOSENSE, INC. IM US HOLDINGS, LLC |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
Title
(respectively): Vice President and
Treasurer; Vice President, Finance; Vice
President, Finance; Vice President and
Treasurer; Vice President and Treasurer;
Vice President, Finance; Vice President,
Finance; General Manager; Vice President;
Vice President, Finance; Vice President,
Finance; Vice President, Finance and Chief
Financial Officer; Vice President, Finance;
Vice President; Vice President, Finance and
Treasurer; Vice President and Treasurer;
Treasurer; President |
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Signature Page to Seventh Supplemental Indenture
| EXISTING GUARANTORS (continued): INNOVACON, INC. INNOVATIVE MOBILITY, LLC INSTANT TECHNOLOGIES, INC. INVERNESS MEDICAL, LLC INVERNESS MEDICAL — BIOSTAR INC. INVERNESS MEDICAL
INNOVATIONS NORTH AMERICA, INC.
INVERNESS MEDICAL
INTERNATIONAL HOLDING CORP.
ISCHEMIA TECHNOLOGIES, INC.IVC INDUSTRIES, INC. MATRITECH, INC. OSTEX INTERNATIONAL, INC. QUALITY ASSURED SERVICES, INC. REDWOOD TOXICOLOGY
LABORATORY, INC.
RMD NETWORKS, INC.RTL HOLDINGS, INC. SELFCARE TECHNOLOGY, INC. TAPESTRY MEDICAL, INC. XXXXXXX LABORATORIES, LLC ZYCARE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
Title (respectively): Vice President, Finance;
Chief Financial Officer; Vice President,
Finance; Vice President, Finance; Vice
President, Finance; Vice President, Finance;
President; Vice President, Finance; Vice
President; Vice President, Finance; Vice
President, Finance; Chief Financial Officer;
Vice President, Finance; Vice President,
Finance and Treasurer; Vice President,
Finance; Vice President, Finance; Vice
President, Finance; Vice President; Chief
Financial Officer and Treasurer |
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Signature Page to Seventh Supplemental Indenture
| EXISTING GUARANTORS (continued): MATRIA OF NEW YORK, INC. |
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| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | President | |||
Signature Page to Seventh Supplemental Indenture
| TRUSTEE: U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
Signature Page to Seventh Supplemental Indenture
