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Exhibit 10.32
SUPPLEMENTAL INDENTURE
by and between
INTERPORE INTERNATIONAL, INC.,
A DELAWARE CORPORATION
CROSS MEDICAL PRODUCTS, INC.,
A DELAWARE CORPORATION
and
THE FIFTH THIRD BANK
AS TRUSTEE
Dated as of May 8, 1998
Relating to:
8.5% Convertible Subordinated Debentures
Due 2003
of
CROSS MEDICAL PRODUCTS, INC.,
a Delaware corporation
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SILICON VALLEY BANK AMENDED SCHEDULE TO LOAN AND SECURITY AGREEMENT
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SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as of
May 8, 1998, is entered into by and between, INTERPORE INTERNATIONAL, INC., a
Delaware corporation ("Interpore"), CROSS MEDICAL PRODUCTS, INC. (formerly
Xxxxxxxxx Medical Technology, Inc.), a Delaware corporation ("Cross") and FIFTH
THIRD BANK, a banking corporation duly organized and existing under the laws of
the State of Ohio, as trustee (the "Trustee") and supplements and amends the
Indenture, dated as of May 15, 1996, by and between Cross and the Trustee (the
"Indenture").
WITNESSETH:
WHEREAS, pursuant to the Indenture, Cross has issued $5,000,000 of 8.5%
Convertible Subordinated Debentures due 2003 (the "Debentures"); and
WHEREAS, Section 5.09 of the Indenture provides that in the event of
any statutory exchange of securities with another corporation (including any
exchange effected in connection with a merger of a third corporation into
Cross), the holder of each Debenture then outstanding shall have the right
thereafter to convert such Debenture into the kind and amount of securities,
cash or other property which he would have owned or have been entitled to
receive immediately after such consolidation, merger, statutory exchange, sale
or conveyance had such Debenture been converted immediately prior to the
effective date of such consolidation, merger, statutory exchange, sale or
conveyance and that if necessary, appropriate adjustment shall be made to the
application of the provisions of Article Five of the Indenture with respect to
the rights and interests thereafter of the holders of the Debentures, to the end
that the provisions of Article Five of the Indenture shall thereafter
correspondingly be made applicable, as nearly as may reasonably be, in relation
to any shares of stock or other securities or property thereafter deliverable on
the conversion of the Debentures and that any such adjustment shall be made and
set forth in a supplemental indenture executed by Cross and the Trustee;
WHEREAS, Section 12.01(b) of the Indenture provides that the Indenture
may be amended without the consent of the holders of the Debentures to make
provision with respect to the conversion rights of the holders of the Debentures
pursuant to Section 5.09 of the Indenture;
WHEREAS, a wholly owned subsidiary of Interpore ("Merger Sub"), has
merged (the "Merger") effective as of May 7, 1998 with and into Cross pursuant
to an Agreement and Plan of Merger, dated February 11, 1998, by and among
Interpore International, a California corporation and the predecessor to
Interpore, Cross and Merger Sub (the "Merger Agreement"); and
WHEREAS, pursuant to the Merger Agreement, (i) Cross became a wholly
owned subsidiary of Interpore and (ii) each issued and outstanding share of
common stock of Cross was converted into the right to receive 1.275 shares of
common stock of Interpore;
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NOW, THEREFORE, the parties hereto agree to amend the Indenture as
follows:
Section 1. Shares Receivable Upon Conversion.
(a) Cross and Interpore hereby agree that the registered
holder of each Debenture shall have the right, subject to the provisions of
Article 5 of the Indenture, to convert the principal amount of any such
Debenture, or any portion of such principal amount which is $1,000 or an
integral multiple thereof, into that number of fully paid and nonassessable
shares of common stock of Interpore, par value $.01 per share, (calculated as to
each conversion to the nearest 1/100th of a share) obtained by dividing the
principal amount of the Debenture or portion thereof to be converted by the
Conversion Price (as defined in the Indenture) and multiplying the resulting
number of shares by 1.275.
(b) The activities specified in Section 5.04 of the Indenture
as requiring an adjustment to the Conversion Price if taken with respect to the
common stock of Cross shall hereafter be deemed to require a corresponding
adjustment to the Conversion Price if taken with respect to the common stock of
Interpore.
(c) The Debentures shall no longer be convertible into shares
of the common stock of Cross.
Section 2. Execution in Several Counterparts. This Supplemental
Indenture may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all such counterparts shall
together constitute but one and the same instrument.
Section 3. Governing Law. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and performed in the State of Delaware.
Section 4. Incorporation By Reference. The parties hereto agree that
the amendments contained in this Supplemental Indenture shall be incorporated by
this reference thereto into the Indenture, which Indenture as so amended shall
serve as the sole operative Indenture in connection with the Debentures.
Section 5. Ratification and Reaffirmation of Indenture. Except as
hereby expressly amended, the Indenture shall remain in full force and effect
and the Indenture, as amended hereby, is ratified and confirmed.
Section 6. Interpretation. In the event of any conflict between the
provisions of the Indenture and the provisions of this Supplemental Indenture,
the provisions of this Supplemental Indenture shall control.
Section 7. Binding Effect. This Supplemental Indenture shall inure to
the benefit of and shall be binding upon Interpore, Cross, the Trustee, the
owners of the Debentures and their respective successors and assigns.
IN WITNESS WHEREOF, INTERPORE and CROSS have caused this Supplemental
Indenture to be signed in each of their names, and FIFTH THIRD BANK, as Trustee,
has caused this Supplemental Indenture to be signed in its name, all as of the
day and year first above written.
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INTERPORE INTERNATIONAL, INC.,
A DELAWARE CORPORATION
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CROSS MEDICAL PRODUCTS, INC.,
A DELAWARE CORPORATION
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
FIFTH THIRD BANK, AS TRUSTEE
By: /S/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Trust Officer
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