VERTRUE INCORPORATED, Issuer AND DEUTSCHE BANK TRUST COMPANY AMERICAS, Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of August 16, 2007 Supplementing the Indenture dated as of September 30, 2003 between Vertrue Incorporated and Deutsche Bank Trust...
Exhibit 4.1
VERTRUE INCORPORATED,
Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Trustee
Dated as
of August 16, 2007
5.50% Convertible Senior Subordinated Notes due 2010
Supplementing the Indenture
dated as of September 30, 2003
between Vertrue Incorporated and
Deutsche Bank Trust Company Americas
dated as of September 30, 2003
between Vertrue Incorporated and
Deutsche Bank Trust Company Americas
FIRST SUPPLEMENTAL INDENTURE dated as of August 16, 2007 (this “First Supplement”) to the
Indenture, dated as of September 30, 2003 (as supplemented, the “Indenture”), between Vertrue
Incorporated (f/k/a Memberworks Incorporated), a Delaware corporation (the “Company”) and Deutsche
Bank Trust Company Americas, a New York banking corporation, as trustee (the “Trustee”), for the
5.50% Convertible Senior Subordinated Notes Due 2010 (the “Securities”). All capitalized terms
used herein that are not otherwise specifically defined herein shall have the respective meanings
ascribed thereto in the Indenture.
W I T N E S S E T H
WHEREAS, the Company has heretofore made, executed and delivered to the Trustee the Indenture
providing for the issuance of the Securities;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of March 22, 2007, by and
among the Company, Velo Holdings Inc., a Delaware corporation (“Parent”), and Velo Acquisition
Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), as amended by
the Amendment to the Agreement and Plan of Merger, dated as of July 18, 2007, by and among the
Company, Parent and Merger Sub (as amended, the “Merger Agreement”), Merger Sub will merge with and
into the Company, with the Company as the surviving corporation (the “Merger”) and becoming a
wholly owned subsidiary of Parent at the effective time of the Merger;
WHEREAS, pursuant to the Merger Agreement, at the effective time of the Merger, each share of
the Company’s common stock, par value $0.01 per share (each a “Share” or, collectively the
“Shares”) issued and outstanding immediately prior to the effective time of the Merger (other than
(i) Shares owned by Parent, Merger Sub or any other direct or indirect wholly owned subsidiary of
Parent and Shares owned by the Company or any direct or indirect wholly owned subsidiary of the
Company, and in each case not held on behalf of third parties, and (ii) Shares that are owned by
stockholders of the Company who have perfected and not withdrawn or lost appraisal rights pursuant
to Section 262 of the Delaware General Corporation Law) shall be converted into the right to
receive $50.00 per Share in cash, without interest;
WHEREAS, the Merger complies with the provisions of Article V of the Indenture;
WHEREAS, pursuant to Section 9.4 of the Indenture, the Company and the Trustee are required to
enter into a supplemental indenture in connection with the Merger;
WHEREAS, pursuant to Section 8.1(c) of the Indenture, the Company and the Trustee may amend,
modify or supplement the Indenture without the consent of any Holder to provide for conversion
rights of Holders of the Securities upon the occurrence of the Merger; and
WHEREAS, the Board of Directors of the Company has authorized the execution and delivery of
this First Supplement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually
covenant and agree as follows:
ARTICLE I.
AMENDMENTS
AMENDMENTS
Section 1.01 Conversion Right. The Indenture is hereby amended to provide that,
subject to the consummation of the Merger, from and after the effective time of the Merger, the
Securities shall cease to be convertible into the right to receive Common Stock and shall
instead be convertible solely into cash, in an amount equal to the product of $50.00 and the
number of shares (including fractional shares) of Common Stock issuable upon conversion of the
Securities into Common Stock pursuant to the Indenture immediately prior to the effective time
of the Merger, without interest thereon.
ARTICLE II.
MISCELLANEOUS
MISCELLANEOUS
Section 2.01 Effectiveness and Operativeness. This First Supplement shall become
effective, and the provisions provided for in this First Supplement shall become operative,
immediately upon consummation of the Merger.
Section 2.02 The Indenture. This First Supplement shall be construed as
supplemental to the Indenture and shall form a part of it for all purposes. Except as
supplemented hereby, the Indenture and all documents executed in connection therewith shall
continue in full force and effect and shall remain enforceable and binding in accordance with
their respective terms thereof and as supplemented by this First Supplement.
Section 2.03 Governing Law. This First Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 2.04 Legal, Valid and Binding Obligation. Each party hereto hereby
represents and warrants that this First Supplement is a legal, valid and binding obligation of
such party and is enforceable against such party in accordance with its terms.
Section 2.05 References to Indenture. Whenever in any certificate, letter, notice
or other instrument reference is made to the Indenture, such reference without more shall
include reference to this First Supplement.
Section 2.06 Multiple Originals. The parties may sign any number of copies of this
First Supplement. Each signed copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this First Supplement.
Section 2.07 Headings. The headings of this First Supplement are for reference
only and shall not limit or otherwise affect the meaning hereof.
Section 2.08 Severability. In case any one or more of the provisions contained in
this First Supplement or in the Securities shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this First Supplement or of the Securities, but this First
Supplement and the Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 2.09 Benefits of Indenture. Nothing in this First Supplement, express or
implied, shall give to any person, other than the parties hereto, their successors hereunder,
and the Holders, any benefit of any legal or equitable right, remedy or claim under this First
Supplement.
Section 2.10 Successors and Assigns. All agreements of the Company and the Trustee
in this First Supplement shall bind their respective successors and assigns.
Section 2.11 Counterparts. This First Supplement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
Section 2.12 Execution. The parties hereto will execute and deliver such further
instruments and do such further acts and things as may be reasonably required to carry out the
intent and purpose of this First Supplement.
Section 2.13 Trust Indenture Act Controls. If any provision of this First
Supplement limits, qualifies or conflicts with another provision which is required to be
included in this First Supplement by the Trust Indenture Act of 1939, as amended, the required
provision shall control.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF this First Supplement has been executed by duly authorized representatives
of the parties hereto as of the date first written above.
Company: | ||||||
VERTRUE INCORPORATED, as Issuer |
||||||
By: | /s/ Xxxxx X. Xxxxx | |||||
Name: Title: |
Xxxxx X. Xxxxx Executive Vice President, Chief Operating Officer and Chief Financial Officer |
|||||
Trustee: | ||||||
DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Trustee |
||||||
By DEUTSCHE BANK NATIONAL TRUST COMPANY |
||||||
By Name: |
/s/ Xxxxx Xxxxxxx
|
|||||
Title: | Assistant Vice President | |||||
By | /s/ Xxxxxx Xxxxxxx
|
|||||
Name: | Xxxxxx Xxxxxxx | |||||
Title: | Vice President |