SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 1, 2010, among RMD NETWORKS, INC. (the “New Guarantor”), a Subsidiary of Inverness Medical Innovations, Inc. (or its successor) (the “Issuer”), INVERNESS MEDICAL...
Exhibit 4.8
SIXTH
SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), dated as of February 1,
2010, among RMD NETWORKS, INC. (the “New Guarantor”), a Subsidiary 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, and a Fifth Supplemental Indenture dated as of November 25, 2009 (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 the New Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor 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, the New Guarantor, 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. The New Guarantor 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 GUARANTOR: RMD NETWORKS, INC., as a New Guarantor |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President, Finance and Treasurer | |||
| 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 Sixth 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 Sixth 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. 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; Vice President, Finance; Vice President, Finance; Vice President; Chief Financial Officer and Treasurer |
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Signature Page to Sixth 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 Sixth 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 Sixth Supplemental Indenture
