Exhibit 4.14
PERSEPTIVE BIOSYSTEMS, INC.,
THE XXXXXX-XXXXX CORPORATION
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of December __, 1997
to
INDENTURE
Dated as of August 26, 1994
------------------------------------------
8-1/4% Convertible Subordinated Debentures Due 2001
FIRST SUPPLEMENTAL INDENTURE, dated as of December __, 1997 (this
"Supplemental Indenture"), among PERSEPTIVE BIOSYSTEMS, INC., a Delaware
Corporation ("PerSeptive"), THE XXXXXX-XXXXX CORPORATION, a New York
corporation ("Xxxxxx-Xxxxx"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation, as Trustee (the "Trustee"). Capitalized
terms used herein without definition shall have the respective meanings
ascribed to such terms in the Indenture.
WHEREAS, PerSeptive and the Trustee have entered into an Indenture,
dated as of August 26, 1994 (the "Indenture"), providing for the issuance of
8-1/4% Convertible Subordinated Debentures Due 2001 (the "Securities");
WHEREAS, PerSeptive, Seven Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Xxxxxx-Xxxxx ("Sub"), and
Xxxxxx-Xxxxx have entered into an Agreement and Plan of Merger, dated as of
August 23, 1997 (the "Merger Agreement"), pursuant to which Sub will merge
with and into PerSeptive (the "Merger"), PerSeptive will become a
wholly-owned subsidiary of Xxxxxx-Xxxxx and each share of common stock, par
value $.01 per share, of PerSeptive ("PerSeptive Common Stock"), issued and
outstanding immediately prior to the effective time of the Merger (the
"Effective Time of the Merger") will be converted into the right to receive
____ of a fully paid and nonassessable share of common stock, $1.00 par value
per share, of Xxxxxx-Xxxxx ("Xxxxxx-Xxxxx Common Stock") in accordance with
the terms of the Merger Agreement;
WHEREAS, Section 4.12 of the Indenture requires PerSeptive and
Xxxxxx-Xxxxx to execute and deliver this supplemental indenture in connection
with the Merger;
WHEREAS, Section 11.1 of the Indenture authorizes PerSeptive and
the Trustee to enter into a supplemental indenture without the consent of any
Holders to make any change in the Indenture that does not materially
adversely effect the rights of any holder of the Securities (a
"Securityholder");
WHEREAS, PerSeptive and Xxxxxx-Xxxxx desire to execute this
supplemental indenture in connection with the Merger in accordance with the
foregoing provisions of the Indenture;
WHEREAS, PerSeptive has furnished the Trustee with (i) an
Officers' Certificate stating that the number of shares of Xxxxxx-Xxxxx
Common Stock receivable by holders of the Securities upon conversion of such
Securities after the Merger, that all conditions precedent to the Merger and
to the execution and delivery of this Supplemental Indenture have been
complied with, (ii) an Opinion of Counsel stating that all conditions
precedent provided for in the Indenture relating to this Supplemental
Indenture have been complied with, and (iii) a Board Resolution of PerSeptive
authorizing the execution of this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid supplement of the Indenture have been satisfied.
NOW, THEREFORE, each party hereto, for the benefit of the other
party hereto and the equal and proportionate benefit of the Holders, is
executing and delivering this Supplemental Indenture and hereby agrees as
follows:
ARTICLE ONE
ASSUMPTION OF OBLIGATIONS
SECTION 1. Xxxxxx-Xxxxx hereby assumes as a joint and several
obligor with PerSeptive, from and after the Effective Time of the Merger, the
due and punctual payment of the principal amount at maturity, sinking fund
payments, Redemption Price, Repurchase Price and interest on all the
Securities as provided in Section 6.1 of the Indenture.
SECTION 2. Xxxxxx-Xxxxx and PerSeptive, from and after the
Effective Time of the Merger, by virtue of the assumption by Xxxxxx-Xxxxx, as
set forth in Section 1 of this Article One, and the delivery of this
Supplemental Indenture, shall be joint and several obligors under the
Indenture with respect to the obligations to make payment of the principal
(and premium, if any) and interest on all the Securities.
ARTICLE TWO
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1. The definition of the term "Common Stock" in Section
1.1 of the Indenture is hereby amended to read in its entirety as follows:
"Common Stock" means any stock of any class of Xxxxxx-Xxxxx (or,
if the context requires, another Person) which has no preference in respect
of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of Xxxxxx-Xxxxx and
which is not subject to redemption by Xxxxxx-Xxxxx. Subject to the
provisions of Section 4.12, however, shares issuable on conversion of
Securities shall include only shares of Common Stock, par value $1.00
(which is the class designated as Common Stock of Xxxxxx-Xxxxx at the
Effective Time of the Merger) of Xxxxxx-Xxxxx or shares of any class or
classes resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of Xxxxxx-Xxxxx and which are not subject to redemption by
Xxxxxx-Xxxxx; PROVIDED that if at any time there shall be
-2-
more than one such resulting class, the shares of each such class then so
issuable shall be substantially in the proportion to which the total number
of shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such
reclassifications.
SECTION 2. The following terms shall be added to Section 1.1 of the
Indenture in their respective appropriate alphabetical places:
"Effective Time of the Merger" has the meaning ascribed to it in
the Agreement and Plan of Merger, dated as of August 23, 1997, by and among
the Company, Xxxxxx-Xxxxx and Seven Acquisition Corp., a Delaware
corporation and a
wholly-owned subsidiary of Xxxxxx-Xxxxx. The Effective Time of the Merger
shall be certified to the Trustee by Xxxxxx-Xxxxx in an Officers'
Certificate.
"Xxxxxx-Xxxxx" means Xxxxxx-Xxxxx Communications, Inc., a New
York corporation, and shall include its
successors and assigns.
SECTION 3. The form on the reverse side of Security attached as
Exhibit A to the Indenture is hereby amended by:
(a) Deleting the reference to "Common Stock of the Company" in
paragraph 8 thereof and inserting in lieu thereof the words "Common Stock";
(b) Deleting the reference to "$13.80" in paragraph thereof and
inserting in lieu thereof the figure "$______"; and
(c) The Conversion Notice attached thereto is hereby amended by
deleting the phrase "Common Stock of the Company" and inserting in lieu thereof
the words "Common Stock".
ARTICLE THREE
CONVERSION OF SECURITIES
SECTION 1. As a result of the Merger, without any action on the
part of any Holders and in accordance with the provisions of Section 4.12 of
the Indenture, on and after the Effective Time of the Merger and during the
period such Security shall be convertible as specified in Section 4.1 of the
Indenture, each $1,000 principal amount of Securities (or an integral
multiple thereof) shall be convertible into fully paid and non-assessable
shares (calculated as to each conversion to the nearest one one-hundredth of
a share) of Common Stock, in accordance with the provisions of Article 4 of
the Indenture, at an initial conversion price per share of $_______, such
conversion price being subject to subsequent adjustment after the
-3-
Effective Time of the Merger in accordance with the provisions of Article 4
of the Indenture.
SECTION 2. Section 4.1 of the Indenture is hereby amended by
deleting each reference to "The Company" in the first paragraph thereof and
inserting in lieu thereof "Perking-Xxxxx".
SECTION 3. Section 4.2 of the Indenture is hereby amended by:
(a) Deleting the words "the Company shall deliver" in the last
sentence of the first paragraph thereof and inserting in lieu thereof the
words "Xxxxxx-Xxxxx shall deliver";
(b) Deleting the references to "the Company" in the second and fifth
paragraphs thereof and inserting in lieu thereof "Xxxxxx-Xxxxx".
SECTION 4. Sections 4.3 through 4.14 of the Indenture are hereby
amended by deleting all references therein to "the Company" and inserting in
lieu thereof "Xxxxxx-Xxxxx".
ARTICLE FOUR
MISCELLANEOUS
SECTION 1. As amended by this Supplemental Indenture, the
Indenture is in all respects ratified and confirmed, and as so supplemented
by this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 2. The Trustee shall not be responsible in any manner
whatsoever for the correctness of the recitals of facts herein, all of which
are made by PerSeptive and Xxxxxx-Xxxxx, and the Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to
the validity, execution or sufficiency of this Supplemental Indenture.
SECTION 3. This Supplemental Indenture shall become a legally
effective and binding instrument upon the later of (i) execution and delivery
hereof by all parties hereto and (ii) the Effective Time of the Merger.
SECTION 4. This Supplemental Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which so executed shall be deemed an original, but all of such
counterparts shall together constitute but one and the same instrument.
SECTION 5. The laws of the Commonwealth of Massachusetts shall
govern this Supplemental Indenture without regard to principles of conflicts
of law.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
PERSEPTIVE BIOSYSTEMS, INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------
Name:
Title:
THE XXXXXX-XXXXX CORPORATION
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-----------------------------
Name:
Title:
Attest:
By:
-------------------------
Name:
Title:
-5-
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________ of PerSeptive
Biosystems, Inc., a Delaware corporation, one of the parties described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[Notary Seal] -------------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________ of PerSeptive
Biosystems, Inc., a Delaware corporation, one of the parties described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[Notary Seal] --------------------------------
Notary Public
-6-
STATE OF CONNECTICUT )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he is ___________________________________ of The Xxxxxx-Xxxxx
Corporation, a New York corporation, one of the parties described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[Notary Seal] -----------------------------
Notary Public
STATE OF CONNECTICUT )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he is ___________________________________ of The Xxxxxx-Xxxxx
Corporation, a New York corporation, one of the parties described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[Notary Seal] -----------------------------
Notary Public
-7-
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he is ___________________________________ of State Street Bank and
Trust Company, a Massachusetts banking corporation, one of the parties described
in and which executed the foregoing instrument; that he knows the seal of said
party; that the seal affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said party, and that he signed
his name thereto by like authority.
[Notary Seal] -----------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF )
On the _____ day of _________, 1996, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he is ___________________________________ of State Street Bank and
Trust Company, a Massachusetts banking corporation, one of the parties described
in and which executed the foregoing instrument; that he knows the seal of said
party; that the seal affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said party, and that he signed
his name thereto by like authority.
[Notary Seal] -----------------------------
Notary Public
-8-
