GENENTECH, INC.
AND
THE BANK OF NEW YORK
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 18, 1995
To
INDENTURE
Dated as of March 27, 1987
Between
GENENTECH, INC.
and
THE BANK OF NEW YORK
as Trustee
U.S. $150,000,000
5% Convertible Subordinated Debentures
Due 2002
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of October 18, 1995 (the
"Second Supplement"), among Genentech, Inc., a Delaware corporation
("Genentech"), and The Bank of New York, as Trustee (the "Trustee"), under
the Indenture, dated as of March 27, 1987 (the "Indenture"), as amended
and supplemented by a First Supplemental Indenture dated as of August 17,
1990, pursuant to which the 5% Convertible Subordinated Debentures Due
2002 of Genentech (the Debentures) were issued.
RECITALS OF GENENTECH
Pursuant to an Agreement and Plan of Merger dated as of May 23, 1995,
as amended (the "Merger Agreement"), by and among Genentech, Roche
Holdings, Inc. ("Roche") and HLR (U.S.) II, Inc., a wholly-owned
subsidiary of Roche ("Merger Sub"), Merger Sub is to be merged with and
into Genentech (the "Merger"). Pursuant to the Merger, each outstanding
share of Common Stock, par value $.02 per share, of Genentech ("Genentech
Common Stock") (other than shares held by Roche and its affiliates) will
be converted into the right to receive one share of Callable Puttable
Common Stock, par value $.02 per share, of Genentech ("Special Common
Stock").
Pursuant to Section 12.11 of the Indenture, Genentech is required to
execute and deliver a supplemental indenture in connection with the
Merger, relating to the conversion rights of the Holders of the Debentures
from and after the effective time of the Merger (the "Effective Time").
All things necessary to continue to make the Debentures issued under
the Indenture as hereby supplemented the valid obligations of Genentech,
to make the Indenture as hereby supplemented a valid agreement of
Genentech and to cause Genentech to continue to comply with its covenants
and requirements under the Indenture following the Merger, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENT WITNESSETH:
In order to comply with the requirements of the Indenture, Genentech
agrees with the Trustee for the equal and proportionate benefit of the
Holders of the Debentures as follows:
1
ARTICLE ONE
Section 101. In accordance with Section 12.11 of the Indenture, from
and after the Effective Time, the Holder of each Security shall have the
right, during the period such Security shall be convertible as specified
in Section 12.01 of the Indenture, to convert such Security only into the
amount of cash and shares of Special Common Stock receivable pursuant to
the Merger by a holder of the number of shares of Common Stock into which
such Security might have been converted immediately prior to the Effective
Time.
Section 102. From and after the Effective Time, the Conversion Price
and the consideration into which the Securities are convertible pursuant
to Article XII of the Indenture, as modified pursuant to this Second
Supplement, shall be subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in
Article XII of the Indenture.
2
ARTICLE TWO
Section 201. Except as otherwise expressly provided or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 203. This Second Supplement shall be effective as of the
Effective Time. This Second Supplement shall have no effect in the event
that the Merger Agreement is terminated and the Merger is abandoned prior
to the Effective Time.
Section 204. The recitals contained herein shall be taken as the
statements of Genentech and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Second Supplement.
Section 205. This Second Supplement shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
Section 206. This Second Supplement may be executed in any number of
counterparts each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplement to be duly executed and their respective seals to be affixed
hereunto and duly attested all as of the day and year first above written.
GENENTECH, INC.
[Corporate Seal] By /s/ John P. McLaughlin
_______________________
John P. McLaughlin
Senior Vice President
Attest:
/s/ Stephen Juelsgaard
THE BANK OF NEW YORK,
as Trustee
[Corporate Seal] By /s/ Helen M. Cotiaux
____________________
Helen M. Cotiaux
Vice President
Attest:
/s/ Marie E. Trimboli
Marie E. Trimboli
Assistant Treasurer
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