ex4_2.htm


    
      

    

    Exhibit
4.2

     

     

    
      SUPPLEMENTAL
INDENTURE (this “Supplemental
Indenture”), dated as of December 19, 2008, among Axcan EU LLC, a
Delaware limited liability company (the “Guaranteeing Subsidiary”), a
subsidiary of Axcan Intermediate Holdings, Inc., a Delaware corporation (the
“Issuer”), and The Bank
of New York Mellon (formerly known as The Bank of New York), a New York banking
corporation, as trustee (the “Trustee”).

       

      W I T N E
S S E T H

       

      WHEREAS,
Axcan Intermediate Holdings Inc. and the Guarantors (as defined in the Indenture
referred to below) has heretofore executed and delivered to the Trustee a Senior
Notes Indenture (the “Indenture”), dated as of May
6, 2008, providing for the issuance of an unlimited aggregate principal amount
of 12.75% Senior Notes due 2016;

       

      WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuer’s Obligations under the Senior Notes and the Indenture on the
terms and conditions set forth herein and under the Indenture (the “Guarantee”); and

       

      WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this 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 mutually
covenant and agree for the equal and ratable benefit of the Holders as
follows:

       

      (1)           Capitalized
Terms.  Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.

       

      (2)           Agreement to
Guarantee.  The Guaranteeing Subsidiary hereby agrees as
follows:

       

      (a)           Along
with all other Guarantors named in the Indenture (including pursuant to any
supplemental indentures), to jointly and severally unconditionally guarantee to
each Holder of a Senior Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Senior Notes or the obligations of the
Issuer hereunder or thereunder, that:

       

      (i)           the
principal of and interest and premium, if any, on the Senior Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Senior Notes, if any, if lawful, and all other obligations of the Issuer to the
Holders or the Trustee thereunder shall be promptly paid in full, all in
accordance with the terms thereof; and

       

      (ii)           in
case of any extension of time of payment or renewal of any Senior Notes or any
of such other obligations, that same shall be promptly paid in full when due in
accordance with the terms of the

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      extension
or renewal, whether at stated maturity, by acceleration or
otherwise.  Failing payment when due of any amount so guaranteed for
whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly
and severally obligated to pay the same immediately.  This is a
guarantee of payment and not a guarantee of collection.

       

      (b)           The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Senior Notes or the Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer or any other Guarantor, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.

       

      (c)           The
Guaranteeing Subsidiary hereby waives: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever.

       

      (d)           This
Guarantee shall not be discharged except by full payment of the obligations
contained in the Senior Notes, the Indenture and this Supplemental
Indenture.  The Guaranteeing Subsidiary accepts all obligations
applicable to a Guarantor under the Indenture, including Article 10 of the
Indenture (which is deemed incorporated in this Supplemental Indenture and
applicable to this Guarantee).  The Guaranteeing Subsidiary
acknowledges that by executing this Supplemental Indenture, it will become a
Guarantor under the Indenture and subject to all the terms and conditions
applicable to Guarantors contained therein.

       

      (e)           If
any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Issuer or the Guarantors, any amount paid either to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.

       

      (f)           The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.

       

      (g)           As
between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guaranteeing Subsidiary for the purpose of this Guarantee.


      
        
           


        

        
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      (h)          The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.

       

      (i)           Pursuant
to Section 10.02 of the Indenture, after giving effect to all other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
Article 10 of the Indenture, this new Guarantee shall be limited to the maximum
amount permissible such that the obligations of such Guarantor under this
Guarantee will not constitute a fraudulent transfer or conveyance.

       

      (j)           This
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Senior Notes are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Senior Notes and Guarantee, whether as a
“voidable preference”, “fraudulent transfer” or otherwise, all as though such
payment or performance had not been made.  In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the
Senior Note shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.

       

      (k)           In
case any provision of this Guarantee 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.

       

      (l)           This
Guarantee shall be a general unsecured senior obligation of such Guaranteeing
Subsidiary, ranking equally in right of payment with all existing and future
Senior Indebtedness of the Guaranteeing Subsidiary, if any.

       

      (m)          Each
payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.

       

      (3)           Execution and
Delivery.  The Guaranteeing Subsidiary agrees that the
Guarantee shall remain in full force and effect notwithstanding the absence of
the endorsement of any notation of such Guarantee on the Senior
Notes.

       

      (4)           Merger, Consolidation or
Sale of All or Substantially All Assets.

       

      (a)       Except
as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate, amalgamate or merge with or into or wind up into
(whether or not such Guaranteeing Subsidiary is the surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of


      
        
           


        

        
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      all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:

       

      (i)                  
(A) such Guaranteeing
Subsidiary is the surviving Person or the Person formed by or surviving any such
consolidation, amalgamation or merger (if other than such Guaranteeing
Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is a Person organized or existing under
the laws of the jurisdiction of organization of such Guaranteeing Subsidiary, as
applicable, or the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such surviving Guaranteeing Subsidiary or
such Person, as the case may be, being herein called the “Successor
Person”);

       

      (B)              the
Successor Person, if other than such Guaranteeing Subsidiary, expressly assumes
all the obligations of such Guaranteeing Subsidiary under the Indenture and such
Guaranteeing Subsidiary’s related Guarantee pursuant to supplemental indentures
or other documents or instruments in a form reasonably acceptable to the
Trustee;

       

      (C)              immediately
after such transaction, no Default exists; and

       

      (D)              the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, amalgamation
or transfer and such supplemental indentures, if any, comply with this
Indenture; or

       

      (ii)                 the
transaction is made in compliance with Section 4.10 of the
Indenture.

       

      (b)           Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, such Guaranteeing Subsidiary under the
Indenture and the Guaranteeing Subsidiary’s
Guarantee.  Notwithstanding the foregoing, such Guaranteeing
Subsidiary may merge or consolidate with or into, wind up into or transfer all
or part of its properties and assets to another Guaranteeing Subsidiary or the
Issuer.

       

      (5)           Releases.  The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:

       

      (a)        Article 2 any sale, exchange,
disposition or transfer (by merger, amalgamation, consolidation or otherwise) of
(i) the Capital Stock of such Guaranteeing Subsidiary, after which the
applicable Guaranteeing Subsidiary is no longer a Restricted Subsidiary or (ii)
all or substantially all the assets of such Guaranteeing Subsidiary, in each
case if such sale, exchange, disposition or transfer is made in compliance with
the applicable provisions of this Indenture;

       

      (ii)                 the
release or discharge of the guarantee by such Guaranteeing Subsidiary of
Indebtedness under the Senior Credit Facilities, or such other

       


      
        
           


        

        
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      guarantee
that resulted in the creation of such Guarantee, except a discharge or release
by or as a result of payment under such guarantee (it being understood that a
release subject to a contingent reinstatement is still a release, and that if
any such Guarantee is so reinstated, such Guarantee shall also be reinstated to
the extent that such Guaranteeing Subsidiary would then be required to provide a
Guarantee pursuant to Section 4.15 in the Indenture);

       

      (iii)                 the
designation of any Restricted Subsidiary that is a Guaranteeing Subsidiary as an
Unrestricted Subsidiary in compliance with the applicable provisions of the
Indenture; or

       

      (iv)                 the
exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 of the Indenture or the discharge of the
Issuer’s obligations under this Indenture in accordance with the terms of the
Indenture; and

       

      (b)        such
Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
in this Indenture relating to such transaction have been complied
with.

       

       (6)           No Recourse Against
Others.  No past, present or future director, officer,
employee, incorporator, member, partner or stockholder of the Guaranteeing
Subsidiary (other than the Issuer and the Guarantors) shall have any liability
for any obligations of the Issuer or the Guarantors (including the Guaranteeing
Subsidiary) under the Senior Notes, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation.  Each Holder by accepting
Senior Notes waives and releases all such liability.  The waiver and
release are part of the consideration for issuance of the Senior
Notes.

       

      (7)           Governing
Law.  THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

       

      (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.

       

      (9)           Effect of
Headings.  The Section headings herein are for convenience only
and shall not affect the construction hereof.

       

      (10)           The
Trustee.  The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary.

       

      (11)           Subrogation.  The
Guaranteeing Subsidiary shall be subrogated to all rights of Holders against the
Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant to
the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided that, if an Event of
Default has occurred and is continuing, the Guaranteeing Subsidiary shall not be
entitled to enforce or receive any payments arising

       


      
        
           


        

        
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      out of,
or based upon, such right of subrogation until all amounts then due and payable
by the Issuer under the Indenture or the Senior Notes shall have been paid in
full.

       

      (12)           Benefits
Acknowledged.  The Guaranteeing Subsidiary’s Guarantee is
subject to the terms and conditions set forth in the Indenture.  The
Guaranteeing Subsidiary acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Indenture and this
Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such
benefits.

       

      (13)           Successors.  All
agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall
bind its Successors, except as otherwise provided in this Supplemental
Indenture.  All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.

       

      [Signature page
follows]

      


      


       

      


       


      
        
           


        

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

       

      
        
          	 	
                  AXCAN
      EU LLC

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ David Mims	 
	 	 	Name:
      David
      Mims	 
	 	 	Title: President	 
	 	 	 	 


        

      

       

      
        
          	 	
                  THE BANK OF NEW YORK
      MELLON,

                  as
      Trustee

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Cheryl
      L. Clarke	 
	 	 	Name:
      Cheryl
      L. Clarke	 
	 	 	Title:
      Vice President