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Exhibit 4(b)
Draft of August 20, 1997
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MERCK & CO., INC.
TO
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
as Trustee
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First Supplemental Indenture
Dated as of ______, 1997
to
Indenture
Dated as of April 1, 1991
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FIRST SUPPLEMENTAL INDENTURE dated as of ______, 1997 (the "First
Supplemental Indenture") between MERCK & CO., INC., a corporation duly organized
and existing under the laws of the State of New Jersey (the "Company"), having
its principal office at Xxx Xxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
R E C I T A L S
The Company has heretofore executed and delivered to XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK (the "Predecessor Trustee") an Indenture, dated as of
April 1, 1991 (herein called the "Indenture") between the Company and the
Predecessor Trustee. All terms used in this First Supplemental Indenture which
are defined in the Indenture shall have the same meanings assigned to them in
the Indenture.
The Trustee is the successor to the Predecessor Trustee under the
Indenture.
Section 901(5) of the Indenture provides that, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental thereto, in form satisfactory to the Trustee, to add to,
change or eliminate any of the provisions of the Indenture in respect of one or
more series of Securities, provided that any such addition, change or
elimination (A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding.
Section 901(9) of the Indenture provides that, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental thereto, in form satisfactory to the Trustee, to cure
any ambiguity, to correct or supplement any provision in the Indenture which may
be defective or inconsistent with any other provision therein, or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
The Company has delivered to the Trustee an Opinion of Counsel
pursuant to Sections 102 and 903 of the Indenture stating that the execution of
this First Supplemental Indenture is authorized or permitted by the Indenture.
All things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
covenants contained in this First Supplemental Indenture, the parties hereto
hereby agree, for
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the equal and proportionate benefit of all Holders of the Securities of any
series created on or after the date hereof as follows:
SECTION 1. Section 301 of the Indenture is hereby amended by
deleting Section 301(9) and inserting in its place the following:
"(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;"
SECTION 2. Section 302 of the Indenture is hereby amended by
deleting the last sentence and inserting the following in its place:
"In the absence of any such provisions with respect to the
Securities of any series created on or after the date of the First
Supplemental Indenture, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple
thereof."
SECTION 3. The provisions and benefit of this First Supplemental
Indenture shall not be effective with respect to Securities of any series
created prior to the date hereof.
SECTION 4. If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this First
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 5. In case any provision in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 6 . Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Securities, any benefit or
any legal or equitable right, remedy or claim under this First Supplemental
Indenture.
SECTION 7. This First Supplemental Indenture supplements the
Indenture and shall be a part and subject to all the terms thereof. Except as
supplemented hereby, the Indenture shall continue in full force and effect.
SECTION 8. This First Supplemental Indenture may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 9. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this First
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.
MERCK & CO., INC.
By_____________________________
Name:
Title:
Attest:
_________________________
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By_____________________________
Name:
Title:
Attest:
_________________________
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STATE OF NEW JERSEY )
) ss.:
COUNTY OF _______________ )
On the ____ day of ______, 1997 before me personally came
____________________________, to me known, who, being by me duly sworn, did
depose and say that he or she is the _______________________ of Merck & Co,
Inc., one of the corporations described in and which executed the foregoing
instrument; that he or she 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 or she
signed his or her name thereto by like authority.
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____ __, 1997 before me personally came
_____________________________, to me known, who, being by me duly sworn, did
depose and say that he or she is _________________________ of First Trust of New
York, National Association, one of the corporations described in and which
executed the foregoing instrument; that he or she 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 or she signed his or her name thereto by like
authority.
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