Exhibit 4.2

 

FIRST SUPPLEMENTAL INDENTURE

 

This First Supplemental Indenture (“Supplemental Indenture”) is made as of October 14, 2011, between Cephalon, Inc., a Delaware corporation (the “Company”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, the Company and the Trustee are parties to that certain Indenture, dated as of May 27, 2009 (the “Indenture”), pursuant to which the Company issued its 2.50% Convertible Senior Subordinated Notes due May 1, 2014 (the “Notes”); and

 

WHEREAS, the Company is party to that certain Agreement and Plan of Merger, dated as of May 1, 2011 (the “Merger Agreement”), by and among Teva Pharmaceutical Industries Ltd., an Israeli corporation (“Teva”), Copper Acquisition Corp., a Delaware corporation and an indirect wholly owned subsidiary of Teva (“Copper”), and the Company, pursuant to which Copper was to merge with and into the Company (the “Merger”) with the Company continuing as the surviving corporation; and

 

WHEREAS, Section 8.4 of the Merger Agreement provides that Copper may assign all of its rights under the Merger Agreement to any of its affiliates; and

 

WHEREAS, pursuant to that certain Assignment and Assumption Agreement, dated as of October 14, 2011, Copper assigned all of its rights under the Merger Agreement to Copper Merger Sub, Inc. a Delaware corporation and an indirect wholly-owned subsidiary of Teva (“Merger Sub”), with Merger Sub assuming all of Copper’s rights, obligations and liabilities under the Merger Agreement; and

 

WHEREAS, Section 5.12(a) of the Indenture provides that in the case of any merger of the Company with another corporation as a result of which holders of Common Stock shall be entitled to receive cash, securities or other property with respect to or in exchange for such Common Stock, then the Company shall execute with the Trustee a supplemental indenture providing that Holders shall be entitled thereafter to convert their Securities into the type and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such Merger Event; provided that, at and after the effective time of any such Merger Event, any amount otherwise payable in cash upon conversion of the Securities shall continue to be payable as provided in Section 5.05; and

 











 

WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, at the effective time of the Merger, the Company’s Common Stock will be converted into the right to receive $81.50 per share, less any applicable withholding taxes and without any interest thereon; and

 

WHEREAS, Section 12.01(a) of the Indenture provides that the Company and the Trustee may amend the Indenture without the consent of any Holders for the purposes specified therein; and

 

WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) an Officer’s Certificate described in Section 5.12(b) of the Indenture and (ii) an Opinion of Counsel described in Section 5.12(b) of the Indenture; and

 

WHEREAS, all other conditions necessary to authorize the execution and delivery of this Supplemental Indenture have been complied with or have been done or performed.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, receipt of which is hereby acknowledged, the Company and the Trustee agree as follows for the equal and ratable benefit of the Holders of the Notes:

 

ARTICLE 1

 

Definitions

 

Section 1.01. General. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

 

ARTICLE 2

 

Agreements of Parties

 

Section 2.01 Daily VWAP. The definition of Daily VWAP in the Indenture is hereby amended and restated in its entirety as follows:

 

“Daily VWAP” means $81.50 per share of Common Stock.

 

Section 2.02 Conversion of Notes.  In accordance with Section 5.12 of the Indenture, from and after the date of this Supplemental Indenture, the Holder of Notes then outstanding shall have the right, during the period such Notes shall be convertible as specified in the Indenture, to convert such Notes solely into the Reference Property (which for the avoidance of doubt, shall be equal to $1,181.16 per $1,000 aggregate principal amount of the Notes based on a Conversion Rate of 14.4928.  Holders of Notes electing to convert their Notes from and after the effective time of the Merger until the second Scheduled Trading Day immediately preceding the related Fundamental Change Purchase Date will be entitled to receive $1,254.18 per $1,000 aggregate principal amount of the Notes based on a Conversion Rate of 15.3887, which includes 0.8959 Additional Shares).  Accordingly, any reference to a share of Common Stock in the Indenture shall be deemed a reference to an amount in cash equal to $81.50 (without interest), and the provisions of the Indenture, as modified herein,

 

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including, for the avoidance of doubt, Section 4.02, shall continue to apply with the necessary changes having been made to the Holders’ right to convert the Notes into the Reference Property.

 

ARTICLE 3

 

Miscellaneous Provisions

 

Section 3.01 Effectiveness; Construction. This Supplemental Indenture shall become effective upon its execution and delivery by the Company and the Trustee and as of the date hereof. Upon such effectiveness, the Indenture shall be supplemented in accordance herewith. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby. The Indenture and this Supplemental Indenture shall henceforth be read and construed together.

 

Section 3.02 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

 

Section 3.03 Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

 

Section 3.04 No Third-Party Beneficiaries. Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties to the Indenture, as supplemented hereby, and their successors, and to the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, as supplemented hereby.

 

Section 3.05 Severability. In case any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be impaired thereby.

 

Section 3.06 Headings. The Article and Section headings of this Supplemental Indenture have been inserted for convenience of reference only and are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 3.07 Successors. All agreements of the Company and the Trustee in this Supplemental Indenture shall bind their respective successors.

 

Section 3.09 Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

 

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Section 3.10 Counterpart Signatures. This Supplemental Indenture may be signed by the parties hereto in multiple counterparts. Each signed counterpart shall be deemed an original, but all of them together shall represent the same agreement.

 

Section 3.11 Confirmation. The Indenture as amended and supplemented by this Supplemental Indenture is in all respects confirmed and preserved.

 

Section 3.12 Conflict with Trust Indenture Act.  If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision hereof or of the Indenture which is required or deemed to be included in this Supplemental Indenture or the Indenture by any of the provisions of the Trust Indenture Act of 1939, such required provision shall control.

 

[Signatures follow]

 

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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.

 

 

	
 
    	
CEPHALON, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ J. Kevin Buchi
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
J. Kevin Buchi
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Title:
    	
Chief Executive Officer
    


 

 

	
 
    	
U.S. BANK NATIONAL ASSOCIATION, as Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Arthur L. Blakeslee
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
Arthur L. Blakeslee
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 

[Signature page to First Supplemental Indenture]