TWELFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 16, 2011, among ALERE INC., a Delaware corporation (the “Issuer”), each of the Guarantors under the Indenture referred to below (the “Guarantors”), and U.S. BANK NATIONAL...
Exhibit 4.2
TWELFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 16,
2011, among ALERE INC., a Delaware corporation (the “Issuer”), each of the Guarantors under the
Indenture referred to below (the “Guarantors”), and U.S. BANK NATIONAL ASSOCIATION, as Trustee
under the Indenture referred to below (the “Trustee”).
WITNESSETH:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an Indenture dated as
of May 12, 2009, as amended, supplemented and modified by a First Supplemental Indenture dated as
of May 12, 2009, a Second Supplemental Indenture dated as of June 9, 2009, a Third Supplemental
Indenture dated as of August 4, 2009, a Fourth Supplemental Indenture dated as of September 22,
2009, a Fifth Supplemental Indenture dated as of November 25, 2009, a Sixth Supplemental Indenture
dated as of February 1, 2010, a Seventh Supplemental Indenture dated as of March 1, 2010, an Eighth
Supplemental Indenture dated as of March 19, 2010 and a Tenth Supplemental Indenture dated as of
June 16, 2011(as so amended, supplemented and modified, and as further amended, supplemented or
modified to date, the “Indenture”), by and among the Issuer, the Guarantors and the Trustee,
providing for the issuance of 9.00% Senior Subordinated Notes due 2016 (the “Notes”);
WHEREAS, pursuant to that certain Consent Solicitation Statement dated May 31, 2011, as
amended and supplemented to date (the “Consent Solicitation Statement”), the Issuer solicited the
consents of the holders of the Notes to the Proposed Amendments and Waivers (as defined in the
Consent Solicitation Statement) with respect to the Indenture;
WHEREAS, the approval by written consent of the holders of at least a majority of the
aggregate principal amount of the Notes outstanding as of May 31, 2011 (the “Record Date”), which
is the record date fixed by the Issuer in accordance with Section 9.05 of the Indenture, of which
record date the Trustee has been duly notified in writing by the Issuer in accordance with Section
9.05, is sufficient to approve the aforesaid Proposed Amendments and Waivers in accordance with the
Indenture;
WHEREAS, having received the approval of the holders of at least a majority of the aggregate
principal amount of the Notes outstanding as of the Record Date (the “Requisite Consent”) pursuant
to Section 9.02(a) of the Indenture with respect to the Proposed Amendments and Waivers, the
Issuer, the Guarantors and the Trustee desire to effect the Proposed Amendments and Waivers as
provided hereinafter;
WHEREAS, all conditions precedent set forth in the Consent Solicitation Statement and the
Indenture to the execution and delivery of this of this Supplemental Indenture by the Issuer, the
Guarantors and the Trustee have been satisfied, and all things necessary have been done to make
this Twelfth Supplemental Indenture, when executed and delivered by the Issuers and the Guarantors,
the legal, valid and binding agreement of the Issuers and the Guarantors, in accordance with its
terms; and
WHEREAS, the Issuer and the Guarantors have requested that the Trustee execute and deliver
this Twelfth Supplemental Indenture;
NOW, THEREFORE in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties to this Twelfth
Supplemental Indenture hereby agree as follows:
SECTION 1. Definitions. For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as corresponding terms and expressions used in
the Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
SECTION 2. Amendment of Section 4.08. Section 4.08 of the Indenture (Limitation on
Restricted Payments) is hereby amended as follows:
(a) The parenthetical in the lead-in of Section 4.08(a)(3) is hereby amended and
restated in its entirety as follows:
“(other than Restricted Payments made pursuant to clauses (2) through
(7), (8) (with respect to non-cash dividends only), (10), (11) and
(12) of Section 4.08(b)),”;
(b) Section 4.08(b) is hereby amended to (i) delete the word “or” at the end of clause
(10) thereof; (ii) renumber current clause (11) thereof as clause (12) thereof (and change
the reference to “clause (11)” therein to be a reference to “clause (12)”); and (iii) insert
the following new clause (11) immediately following clause (10) thereof and immediately
preceding the newly renumbered clause (12) thereof:
“(11) redemptions and repurchases of Equity Interests of the Issuer
held by any Person; provided, however, that the
aggregate cash consideration paid for all such redemptions and
repurchases made pursuant to this clause (11) shall not exceed $200.0
million in the aggregate;”; and
(c) The reference to “clause (11)” in clause (x) of the proviso at the end of Section
4.08(b) is hereby amended to refer instead to “clause (12)”.
SECTION 3. Waivers. In accordance with Section 9.02(a) of the Indenture, the
Proposed Waivers (as defined in the Consent Solicitation Statement), having received the Requisite
Consent, are hereby effective (subject to Section 4) in accordance with Article IX of the Indenture
and incorporated herein by reference.
SECTION 4. Effectiveness of Amendments and Waivers. This Supplemental Indenture
shall be effective upon execution hereof by the Issuer, the Guarantors and the Trustee; provided,
however, that the aforesaid Proposed Amendments and Waivers shall not take effect until the payment
of the Consent Fee (as defined in the Consent Solicitation Statement) in accordance with the
Consent Solicitation Statement. If the Consent Solicitation (as defined in the Consent
Solicitation Statement) is terminated, withdrawn or otherwise not completed in accordance with the
Consent Solicitation, or the Consent Fee is not paid in accordance with the
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Consent Solicitation Statement, this Supplemental Indenture shall automatically become null
and void ab initio.
SECTION 5. Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly modified hereby, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 6. Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, but without giving effect to
applicable principles of conflicts of laws to the extent that the application of the laws of
another jurisdiction would be required thereby.
SECTION 7. Trustee Makes No Representation. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture.
SECTION 8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
SECTION 9. Effect of Headings. The Section headings herein are for convenience only
and shall not effect the construction thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
| ISSUER: ALERE INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
Signature Page to Twelfth Supplemental Indenture — 9.0% Notes due 2016
| GUARANTORS: ALERE GENETICS, INC. ALERE HEALTH IMPROVEMENT COMPANY ALERE HEALTH, LLC ALERE HEALTH SYSTEMS, INC. ALERE HEALTHCARE OF ILLINOIS, INC. ALERE HOME MONITORING, INC. ALERE INTERNATIONAL HOLDING CORP. ALERE MEDICAL, INC. ALERE OF NEW YORK, INC. ALERE NEWCO, INC. ALERE NEWCO II, INC. ALERE NORTH AMERICA, INC. ALERE SAN DIEGO, INC. ALERE SCARBOROUGH, INC. ALERE US HOLDINGS, LLC ALERE WELLOLOGY INC. ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC AMEDITECH INC. BINAX, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
Title (respectively): Vice President and
Treasurer; Vice President, Finance; Vice
President and Treasurer; Vice President and
Treasurer; Vice President, Finance; Vice
President, Finance; President; Vice
President and Treasurer; President; Vice
President, Finance; President; Vice
President, Finance; Vice President, Finance;
Vice President, Finance; President; Vice
President, Finance; Vice President, Finance;
General Manager; Vice President; Vice
President, Finance |
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Signature Page to Twelfth Supplemental Indenture — 9.0% Notes due 2016
| GUARANTORS (continued): BIOSITE INCORPORATED CHOLESTECH CORPORATION FIRST CHECK DIAGNOSTICS CORP. FIRST CHECK ECOM, INC. ALERE WELLBEING, INC. HEMOSENSE, INC. INNOVACON, INC. INSTANT TECHNOLOGIES, INC. INVERNESS MEDICAL, LLC IVC INDUSTRIES, INC. QUALITY ASSURED SERVICES, INC. REDWOOD TOXICOLOGY LABORATORY RMD NETWORKS, INC. RTL HOLDINGS, INC. SELFCARE TECHNOLOGY, INC. XXXXXXX LABORATORIES, LLC ZYCARE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
Title (respectively): Vice President, Finance;
Vice President, Finance; Vice President,
Finance; Vice President; Vice President,
Finance and Treasurer; Treasurer; Vice
President, Finance; Vice President, Finance;
Vice President, Finance; Vice President;
Vice President, Finance; Vice President,
Finance; Vice President, Finance and
Treasurer; Vice President, Finance; Vice
President, Finance; President; Vice
President; Chief Financial Officer and
Treasurer |
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Signature Page to Twelfth Supplemental Indenture — 9.0% Notes due 2016
| GUARANTORS (continued): ALERE TOXICOLOGY SERVICES, INC. LABORATORY SPECIALISTS OF AMERICA, INC. SCIENTIFIC TESTING LABORATORIES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title (respectively): Secretary; Secretary; Secretary | ||||
Signature Page to Twelfth Supplemental Indenture — 9.0% Notes due 2016
| TRUSTEE: U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Twelfth Supplemental Indenture — 9.0% Notes due 2016
