SUPPLEMENTAL INDENTURE PHARMANET DEVELOPMENT GROUP, INC. AND AS TRUSTEE Supplemental Indenture Dated as of March 30, 2009 Supplementing the Indenture Dated as of August 11, 2004
Exhibit 4.1
PHARMANET
DEVELOPMENT GROUP, INC.
AND
U.S.
BANK NATIONAL ASSOCIATION,
AS
TRUSTEE
_______________
Dated
as of March 30, 2009
Supplementing
the Indenture
Dated
as of August 11, 2004
_______________
2.25%
Convertible Senior Notes due 2024
THIS
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
March 30, 2009, by and between PharmaNet Development Group, Inc., a
Delaware corporation (the “Company”) and U.S. Bank National Association, as
trustee (the “Trustee”), under the Indenture, dated as of August 11, 2004
(as amended and supplemented, the “Indenture”). Terms used herein but not
otherwise herein defined have the meanings assigned to them in the
Indenture.
WITNESSETH:
WHEREAS,
the Company and the Trustee have heretofore executed and delivered the Indenture
providing for the issuance by the Company of 2.25% Convertible Senior Notes due
2024 (the “Notes”);
WHEREAS,
the Company is a party to an Agreement and Plan of Merger, dated as of
February 3, 2009 (the “Merger Agreement”), by and among JLL Pharmanet
Holdings, LLC, a Delaware limited liability company (“Parent”), PDGI Acquisition
Corp., a Delaware corporation and wholly-owned indirect subsidiary of Parent
(the “Purchaser”), and the Company, pursuant to which the Purchaser merged with
and into the Company (the “Merger”), with the Company surviving the Merger and
becoming a wholly-owned indirect subsidiary of Parent;
WHEREAS,
the Merger became effective at [·] p.m., Eastern time,
on March 30, 2009 (the “Effective Time”) and, from and after the Effective
Time, each share of Common Stock issued and outstanding immediately prior to the
Effective Time (other than Common Stock owned by the Company, Parent, the
Purchaser (prior to the Merger) or any of their respective subsidiaries and
Common Stock held by dissenting holders of Common Stock who properly exercise
appraisal rights under Delaware law), by virtue of the Merger and without any
action on the part of the holders of the Common Stock, was cancelled in exchange
for the right to receive $5.00 per share, net to the seller in cash, without
interest and subject to any withholding taxes;
WHEREAS,
Section 10.12 of the Indenture provides that, in connection with the
Merger, the Company shall execute with the Trustee a supplemental indenture
providing that each Note shall be convertible into the kind and amount of
consideration receivable by a holder of a number of shares of Common Stock
issuable upon conversion of such Notes immediately prior to the Merger assuming
such holder of Common Stock did not exercise his rights of election, if any, as
to the kind or amount of consideration receivable upon the Merger, which
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Article 10
of the Indenture;
WHEREAS,
Section 9.01(i) of the Indenture provides that the Company may, from time
to time, and at any time enter into a supplemental indenture without the consent
of the holders of the Notes to make provisions with respect to Section 10.12 of
the Indenture;
WHEREAS,
the Company has heretofore delivered or is delivering contemporaneously herewith
to the Trustee (i) copies of resolutions of the Board of Directors of the
Company authorizing the execution of this Supplemental Indenture, (ii) the
Officers’ Certificate and (iii) the Opinion of Counsel, as described in Sections
10.12 and 11.04 of the Indenture; and
WHEREAS,
all other acts and proceedings required by law and the Indenture necessary to
authorize the execution and delivery of this Supplemental Indenture and to make
this Supplemental Indenture a valid and binding agreement for the purposes
expressed herein, in accordance with its terms, have been complied with or have
been duly done or performed;
NOW,
THEREFORE, in consideration of the foregoing and notwithstanding any provision
of the Indenture which, absent this Supplemental Indenture, might operate to
limit such action, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE
ONE
AMENDMENTS
SECTION
1.01. Conversion Obligation of the
Company. Subject to and upon compliance with the provisions of the
Indenture, the conversion obligation of the Company with respect to each $1,000
principal amount of Notes tendered for conversion from and after the Effective
Time shall be fixed at an amount in cash equal to $121.71 per $1,000 principal
amount, without interest.
SECTION
1.02. Settlement Upon Conversion.
Upon conversion of any Note, subject to and upon compliance with the provisions
of the Indenture, as supplemented hereby, the Company shall satisfy the
conversion obligation by payment and delivery of cash in an amount equal to the
aggregate Conversion Value of the Note(s) so converted.
SECTION
1.03. Effectiveness. This
Supplemental Indenture will become effective and operative and binding upon each
of the Company, the Trustee and the holders of the Notes as of the day and year
first above written.
ARTICLE
TWO
MISCELLANEOUS
SECTION
2.01. Reference to and Effect on the
Indenture. On and after the date of this Supplemental Indenture, each
reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or
“herein” shall mean and be a reference to the Indenture as supplemented by this
Supplemental Indenture unless the context otherwise requires. The Indenture, as
supplemented by this Supplemental Indenture, shall be read, taken and construed
as one and the same instrument. Except as specifically amended above, the
Indenture shall remain in full force and effect and is hereby ratified and
confirmed.
SECTION
2.02. Governing Law. This
Supplemental Indenture shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION
2.03. Trust Indenture Act Controls.
No modification of any provisions of the Indenture effected by this Supplemental
Indenture is intended to eliminate or limit any provision of the Indenture that
is required to be included therein by the Trust Indenture Act of 1939, as
amended, as in force as of the effectiveness of this Supplemental
Indenture.
SECTION
2.04. Trustee Disclaimer; Trust.
The recitals contained in this Supplemental Indenture shall be taken as the
statements of the Issuers, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture. The Trustee accepts the trust
created by the Indenture, as supplemented by this Supplemental Indenture, and
agrees to perform the same upon the terms and conditions of the Indenture, as
supplemented hereby.
SECTION
2.05. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall constitute but one and
the same instrument.
SECTION
2.06. Effect of Headings. The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION
2.07. Severability. In case any
provision of this Supplemental Indenture shall be invalid, illegal or
unenforceable, including any amendment or waiver that, pursuant to
Section 9.02 of the Indenture, requires the consent of each holder
affected, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed all as of the date hereof.
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PHARMANET
DEVELOPMENT GROUP, INC.
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By:
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/s/ Xxxx X. Xxxxxx | |
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Name:
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Xxxx
X. Xxxxxx
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Title:
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Executive
Vice President and Chief
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Financial
Officer
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U.S.
BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Xxxxxxx X. Xxxx | |
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Name:
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Xxxxxxx X. Xxxx | |
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Title:
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Vice President | |
