Exhibit
4.2


 


FIRST SUPPLEMENTAL
INDENTURE


 


FIRST SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”) executed as of October 20, 2009 by and among Sepracor Inc., a Delaware
corporation (the “Company”) and
the Bank of New York Mellon (formerly JPMorgan Chase Bank), as Trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, the Company and the Trustee have heretofore
executed and delivered that certain Indenture, dated as of September 22,
2004 (the “Indenture”), providing for the issuance of an initial principal
amount of up to $500,000,000 of 0% Convertible Senior Subordinated Notes Due
2024 (the “2024 Notes”);


 


WHEREAS, the Company has entered into an Agreement and
Plan of Merger dated as of September 3, 2009 (the “Merger Agreement”), by
and among the Company, Dainippon Sumitomo Pharma Co., Ltd., a company
formed under the laws of Japan (“Parent”)
and Aptiom, Inc., a Delaware corporation and indirect wholly-owned
subsidiary of Parent (“Aptiom”),
providing for the merger (the “Merger”) of Aptiom with and into the Company,
whereupon the separate existence of Aptiom shall cease, and the Company shall
be the surviving corporation;


 


WHEREAS, the Merger is a permitted transaction
pursuant to Section 12.01 of the Indenture, provided that the surviving
entity expressly assumes, by a supplemental indenture, the due and punctual
payment of the principal of and premium, if any, and Liquidated Damages, if
any, on all of the 2024 Notes, according to their terms, and the due and
punctual performance and observance of all of the covenants and conditions of
the Indenture to be performed by the Company;


 


WHEREAS, upon the terms and subject to the conditions
of the Merger Agreement, each share of common stock, par value $0.10 per share,
of the Company (the “Common Stock”) outstanding immediately prior to the
effective time of the Merger (the “Effective Time”) will be converted into the
right to receive $23.00 in cash (the “Merger Consideration”);


 


WHEREAS, Section 15.05 of the Indenture provides
that, in connection with the Merger, the Company shall execute and deliver to
the Trustee a supplemental indenture providing that the 2024 Notes then
outstanding shall be convertible into the kind and amount of shares of stock
and other securities or property or assets (including cash) receivable upon the
Merger by a holder of the number of shares of Common Stock issuable upon
conversion of such 2024 Notes at the Conversion Rate immediately prior to the
Merger;


 


WHEREAS, Section 16.01 of the Indenture provides
that each Noteholder may, at its option, require the Company to repurchase all
of such holder’s 2024 Notes, or any
portion thereof that is a multiple of $1,000 principal amount, on October 15,
2014 and October 15, 2019 (each, a “Repurchase Date”) at a purchase price
equal to 100% of the principal amount thereof, together with accrued and unpaid
Liquidated Damages thereon, if any, to, but excluding the Repurchase Date (the “October Repurchases”);


 


WHEREAS, Section 16.02 of the Indenture provides
that, in the event of a Designated Event, each Noteholder may, at its option,
require the Company to repurchase all of such holder’s


 

















 


2024 Notes, or
any portion thereof that is a multiple of $1,000 principal amount, on the date
(the “Designated Event Repurchase Date”) specified by the Company that is not
less than twenty (20) Business Days and not more than thirty (30) Business Days
after the date of the Designated Event Notice of such Designated Event at a
repurchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid Liquidated Damages thereon, if any, to, but excluding, the
Designated Event Repurchase Date (together, with the October Repurchases,
the “Repurchase Options”);


 


WHEREAS, Section 11.01 of the Indenture provides
that the Company, when authorized by a resolution of its board of directors,
and the Trustee may enter into indentures supplemental to the Indenture without
the consent of the Noteholders;


 


WHEREAS, the execution and delivery of this
Supplemental Indenture has been duly authorized by the parties hereto, and all
other acts necessary to make this Supplemental Indenture a valid and binding
supplement to the Indenture, effectively supplementing the Indenture as set
forth herein, have been duly taken.


 


NOW, THEREFORE, in consideration of the above premises
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, it is mutually agreed, for the equal and proportionate benefit of
all Noteholders, as follows:


 


ARTICLE ONE


 


1.1           The
Company, as the surviving entity of the Merger, agrees to assume the due and
punctual payment of the principal of and premium, if any, and Liquidated
Damages, if any, on all of the 2024 Notes, according to their terms, and the
due and punctual performance and observance of all of the covenants and conditions
of the Indenture to be performed by the Company.


 


1.2           From
the Effective Time of the Merger until the date of maturity of the 2024 Notes,
each $1,000 principal amount of 2024 Notes outstanding, and for which a
Repurchase Option has not been exercised, shall be convertible into the Merger
Consideration at the Conversion Rate, pursuant to the terms of the Indenture.


 


ARTICLE TWO


 


2.1           All
terms used in this Supplemental Indenture which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to such terms
in the Indenture.


 


2.2           All
of the provisions of this Supplemental Indenture shall be deemed to be
incorporated in, and made part of, the Indenture, and the Indenture, as amended
and supplemented by this Supplemental Indenture, shall be read, taken and
construed as one and the same instrument and shall be binding upon all the
Noteholders.


 


2.3           This
Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.


 


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2.4           In
case any provision in this 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.


 


2.5           Nothing
in this Supplemental Indenture, express or implied, shall give any person,
other than the parties hereto and their successors hereunder and the
Noteholders, any benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture.  Except as
expressly supplemented or amended as set forth in this Supplemental Indenture,
the Indenture is hereby ratified and confirmed, and all the terms, provisions
and conditions thereof shall be and continue in full force and effect.  The Trustee accepts the trusts created by the
Indenture, as amended and supplemented by this Supplemental Indenture, and
agrees to perform the same upon the terms and conditions in the Indenture as
amended and supplemented by this Supplemental Indenture.


 


2.6           The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture, except with respect
to the execution hereof by the Trustee, or for or in respect of the recitals
contained herein, all of which are made solely by the Company.


 


* * * * * * *


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, all as of the day and year
first written above.


 


 


	
   

  	
  SEPRACOR INC.

  
	
   

  	
   

  
	
   

  	
  /s/ Robert F. Scumaci

  
	
   

  	
   

  
	
   

  	
  Name: Robert F. Scumaci

  
	
   

  	
  Title: Executive Vice President, Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON

  Trustee

  
	
   

  	
   

  
	
   

  	
  /s/ Francine Kincaid

  
	
   

  	
   

  
	
   

  	
  Name: Francine Kincaid

  
	
   

  	
  Title: Vice President

  



 


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