AFFYMETRIX, INC., AS ISSUER and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE Second Supplemental Indenture Dated as of March 31, 2016 to the Indenture Dated as of June 25, 2012
Exhibit 4.1
AFFYMETRIX, INC.,
AS ISSUER
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
AS TRUSTEE
Dated as of March 31, 2016
to the
Indenture
Dated as of June 25, 2012
This SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of March 31, 2016, is by and between Affymetrix, Inc., a Delaware corporation (the “Company”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
WHEREAS, the Company has duly authorized the execution and delivery of this Second Supplemental Indenture and has done all things necessary to make this Second Supplemental Indenture a valid agreement in accordance with its terms;
ARTICLE 1
Section 1.01 | Definitions. |
For all purposes of this Second 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 Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE 2
Section 2.01 | Conversion of Notes. |
At and after the effective time of the Merger:
(a) | in accordance with and subject to Section 8.07 of the First Supplemental Indenture, the right to convert each $1,000 principal amount of Notes shall be changed into the right to convert such principal amount of Notes into the amount of cash that a holder of the number of shares of Common Stock equal to the Conversion Rate (as may be increased by any Additional Shares provided for pursuant to Section 8.03 of the First Supplemental Indenture as a consequence of the Merger) immediately prior to the Merger would have owned or been entitled to receive upon the Merger; and |
(b) | pursuant to Section 8.07 of the First Supplemental Indenture, upon conversion of the Notes by a Holder, the Company will issue to such Holder, for each $1,000 principal amount of Notes, cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 8.03), multiplied by the price paid per share of Common Stock in the Merger. |
ARTICLE 3
Section 3.01 | Severability. |
In case any provision of this Second 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 3.02 | Modification, Amendment and Waiver. |
The provisions of this Second Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the Indenture, except by the execution of a supplemental indenture in compliance with Article 7 of the Base Indenture.
Section 3.03 | Ratification of Indenture; Second Supplemental Indenture Part of the Indenture. |
Except as expressly amended 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. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Second Supplemental Indenture, then the terms and conditions of the Indenture shall prevail. This Second 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 3.04 | Trust Indenture Act Controls. |
If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this Second Supplemental Indenture by the Trust Indenture Act, including, without limitation, the duties imposed by Trust Indenture Act Section 318(c), the required provision of the Trust Indenture Act shall control.
Section 3.05 | Governing Law. |
THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.06 | Trustee Makes No Representation. |
The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture. The recitals and statements contained in this Second Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
Section 3.07 | Multiple Counterparts. |
The parties may sign multiple counterparts of this Second Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.
Section 3.08 | Headings. |
The headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.09 | Successors. |
All agreements of the Company in this Second Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successors.
Section 3.10 | Company Request. |
The Company hereby requests the Trustee to execute this Second Supplemental Indenture.
AFFYMETRIX, INC. | ||||||
By: | /s/ Xxxxx Xxxx | |||||
Name: Xxxxx Xxxx | ||||||
Title: Senior Vice President and General Counsel | ||||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||||
By: | /s/ Xxxxxxxx X. Xxxxx | |||||
Name: Xxxxxxxx X. Xxxxx | ||||||
Title: Vice President |
[Signature Page to Second Supplemental Indenture]