EXHIBIT 4.1
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MEDICIS PHARMACEUTICAL CORPORATION
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as
Trustee
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Supplemental Indenture
Dated as of February 1, 2005
to
Indenture
Dated as of August 19, 2003
SUPPLEMENTAL INDENTURE ("SUPPLEMENTAL INDENTURE"), dated as of February 1,
2005, between MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation (the
"COMPANY"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (the "TRUSTEE").
Capitalized terms used herein and not otherwise defined herein have the
meaning assigned to those terms in the Indenture.
WITNESSETH
WHEREAS, the Company and the Trustee executed and delivered an Indenture,
dated as of August 19, 2003 (the "INDENTURE"), to provide for the issuance of
the Company's 1.5% Contingent Convertible Senior Notes Due 2033 (the "NOTES");
WHEREAS, Section 9.01 of the Indenture permits the Company and the Trustee
to enter into one or more indentures supplemental to the Indenture without
notice to or consent of any Securityholder for the purpose of curing any defect
in the Indenture;
WHEREAS, the Company seeks to enter into this Supplemental Indenture for
the purpose of correcting a defect in Section 10.06(d) of the Indenture and
requests that the Trustee execute this Supplemental Indenture pursuant to
Sections 9.01 and 9.06; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement according to its terms have been done.
NOW, THEREFORE, the Companies agrees with the Trustee as follows:
ARTICLE 1
AMENDMENTS
Section 1.01. Amendments to Indenture. Section 10.06(d) of the Indenture
shall be amended by deleting the word "dividing" on the sixteenth line of
Section 10.06(d) and replacing it with the word "multiplying".
1
ARTICLE 2
MISCELLANEOUS
Section 2.01. Effect Of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by each of the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every holder of Securities heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby.
Section 2.02. Confirmation Of Indenture. The Indenture, as supplemented
and amended by this Supplemental Indenture, is in all respects ratified and
confirmed, and the Indenture, this Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
Section 2.03. Concerning The Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Indenture.
Section 2.04. Governing Law. This Supplemental Indenture shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of the State of New
York.
Section 2.05. Separability. In case any provision contained 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.
Section 2.06. Successors. All agreements of the Company in this
Supplemental Indenture shall bind its successor. All agreements of the Trustee
in this Supplemental Indenture shall bind its successor.
Section 2.07. Counterparts. This Supplemental Indenture 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.
2
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Supplemental Indenture on behalf of the respective parties hereto as of the
date first written above.
MEDICIS PHARMACEUTICAL
CORPORATION
By: /s/ Mark A. Prygocki, Sr.
----------------------------------
Name: Mark A. Prygocki, Sr.
Title: Executive Vice President
Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Susan Johnson
----------------------------------
Name: Susan Johnson
Title: Vice President
3
Officers' Certificate relating to the Supplemental Indenture
The undersigned hereby certify, pursuant to the Indenture (the
"INDENTURE") dated as of August 19, 2003 between Medicis Pharmaceutical
Corporation, a Delaware corporation (the "COMPANY"), and Deutsche Bank Trust
Company Americas, as trustee (the "TRUSTEE"), that:
1. We are familiar with the Indenture and have read Sections 9.01 and
11.04 thereof.
2. We have reviewed the Supplemental Indenture dated as of February 1,
2005 between the Company and the Trustee (the "SUPPLEMENTAL INDENTURE").
3. We have made such examinations or investigations as are necessary to
enable us to express the opinion set forth in paragraph 4 below.
4. We are of the opinion that the execution of the Supplemental Indenture
and the amendment contained therein have been authorized or permitted by the
Indenture and all conditions precedent to the execution of the Supplemental
Indenture have been complied with as of the date hereof.
Capitalized terms used herein but not defined herein have the meanings set
forth in the Indenture.
IN WITNESS WHEREOF, the undersigned have executed this Officers'
Certificate as of February 1, 2005.
By: /s/ Jonah Shacknai
-----------------------------
Name: Jonah Shacknai
Title: Chairman and
Chief Executive Officer
By: /s/ Mark A. Prygocki, Sr.
------------------------------------
Name: Mark A. Prygocki, Sr.
Title: Executive Vice President,
Chief Financial Officer
AKIN GUMP
STRAUSS HAUER & FELD LLP
_________ Attorneys at Law
February 25, 2005
Deutsche Bank Trust Company Americas
Trust & Securities Services
60 Wall Street 27th Floor
New York, NY 10005
Attn: Susan Johnson
Re: Medicis Pharmaceutical Corporation 1.5% Contingent Convertible
Senior Notes Due 2033
Ladies and Gentlemen:
We have acted as counsel to Medicis Pharmaceutical Corporation, a Delaware
corporation (the "COMPANY"), in connection with the First Supplemental
Indenture, dated as of February 1, 2005 (the "SUPPLEMENTAL INDENTURE"), between
the Company and Deutsche Bank Trust Company Americas, as trustee (the
"TRUSTEE"), to the Indenture, dated as of August 19, 2003 (the "INDENTURE"),
between the Company and the Trustee, relating to the Company's 1.5% Contingent
Convertible Senior Notes due 2033 (the "NOTES"). This opinion letter is being
delivered to you pursuant to the requirements of Sections 9.01(b) and 11.04 of
the Indenture. All capitalized terms used in this opinion letter, without
definition, have the meanings assigned to them in the Indenture.
In connection with this opinion letter, we have examined an executed
original of the Supplemental Indenture. In addition, we have examined the
following documents (collectively, the "DUE DILIGENCE DOCUMENTS"): (i) the
Certificate of the Company, dated February 1, 2005, delivered to the Trustee
pursuant to Sections 11.04 and 11.05 of the Indenture and (iii) the Indenture.
We have examined originals or certified copies of such corporate records
of the Company and other certificates and documents of officials of the Company,
public officials and others as we have deemed appropriate for purposes of this
opinion letter. As to various questions of fact relevant to this opinion letter,
we have relied, without independent investigation, upon the Due Diligence
Documents, certificates of public officials, and other certificates of officers
of the Company, all of which we assume to be true, correct and complete. We wish
to inform you that our knowledge is necessarily limited due to the limited scope
of our review. In addition, we have
590 Madison Avenue / New York, NY 10022-2524 / 212.872.1000 /
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AKIN GUMP
STRAUSS HAUER & FELD LLP
_______ Attorneys at Law
Deutsche Bank Trust Company Americas
February 25, 2005
Page 2
made no inquiry of the Company or any other person or entity (including
governmental authorities) regarding, and no review of, any judgments, orders,
decrees, franchises, licenses, certificates, permits or other public records or
agreements to which the Company is a party other than the officers' certificates
described above, and our knowledge of any such matters is accordingly limited.
We have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity to authentic original
documents of all copies submitted to us as conformed, certified or reproduced
copies. We have also assumed the legal capacity of natural persons, that the
Trustee has been duly authorized to execute, deliver and perform its obligations
under, and has duly executed and delivered, the Supplemental Indenture, and that
the Supplemental Indenture constitutes the legal, valid and binding obligation
of the Trustee, enforceable against the Trustee in accordance with its terms.
Based upon the foregoing and subject to the assumptions, exceptions,
qualifications and limitations set forth hereinafter, we are of the opinion
that:
1. The Supplemental Indenture is authorized by the Indenture and all
conditions precedent to the execution, delivery and performance of the
Supplemental Indenture have been satisfied.
2. The execution and delivery of the Supplemental Indenture by the Company
do not, and the performance by the Company of its obligations under the
Supplemental Indenture will not, conflict with, or result in the breach of or
constitute a default under any of the terms, conditions or provisions of the
Indenture.
3. The Supplemental Indenture constitutes the valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
4. The actions contemplated
The opinions and other matters in this opinion letter are qualified in
their entirety and subject to the following:
A. We express no opinion as to the (i) qualifications of the Trustee under the
Trust Indenture Act or (ii) the ability of the Company or the Trustee to
perform, observe or otherwise comply with the terms of the Supplemental
Indenture.
AKIN GUMP
STRAUSS HAUER & FELD LLP
________ Attorneys at Law
Deutsche Bank Trust Company Americas
February 25, 2005
Page 3
B. We express no opinion as to the laws of any jurisdiction other than the
Included Laws. We have made no special investigation or review of any
published constitutions, treaties, laws, rules or regulations or judicial or
administrative decisions ("LAWS"), other than a review of (i) the Laws of
the State of New York, (ii) the General Corporation Law of the State of
Delaware and (iii) the Federal Laws of the United States of America. For
purposes of this opinion, the term "INCLUDED LAWS" means the items described
in clauses (i), (ii) and (iii) of the preceding sentence that are, in our
experience, normally applicable to transactions of the type contemplated by
the Indenture. The term Included Laws specifically excludes (a) Laws of any
counties, cities, towns, municipalities and special political subdivisions
and any agencies thereof and (b) Laws relating to land use, zoning and
building code issues, taxes, environmental issues, intellectual property
Laws, antitrust issues, Federal Reserve Board margin regulation issues and
securities law issues. Notwithstanding the foregoing, the term "Included
Laws" specifically excludes laws, rules and regulations relating to the
regulation of the conduct of the businesses of the Company and its
Subsidiaries, including, without limitation, the pharmaceutical business.
C. This opinion letter and the matters addressed herein are as of the date
hereof or such earlier date as is specified herein, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any matter
set forth herein, whether based on a change in the law, a change in any fact
relating to the Company or any other person, or any other circumstance. This
opinion letter is limited to the matters expressly stated herein and no
opinions are to be inferred or may be implied beyond the opinions expressly
set forth herein.
D. The matters expressed in this opinion letter are subject to and qualified
and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer
and conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, (ii) general principles of equity,
including principles of materiality, reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law
or in equity), (iii) commercial reasonableness and unconscionability and an
implied covenant of good faith and fair dealing, (iv) the possible
unavailability of specific performance, injunctive relief or other equitable
remedies and (v) securities Laws and public policy underlying such Laws with
respect to rights to indemnification and contribution.
E. This opinion letter is limited to the matters expressly stated herein and
no opinions are to be inferred or may be implied beyond the opinions
expressly set forth herein. We express no opinion with respect to the
fairness of the Supplemental Indenture or any other matter, and in rendering
the opinions expressed herein, we have assumed, with your consent, that a
court of
AKIN GUMP
STRAUSS HAUER & FELD LLP
_______ Attorneys at Law
Deutsche Bank Trust Company Americas
February 25, 2005
Page 4
competent jurisdiction would find all such matters were entirely fair. We
have assumed that no fraud, dishonesty, forgery, coercion, duress or breach
of fiduciary duty exists or will exist with respect to any of the matters
relevant to the opinions expressed in this opinion letter.
F. We express no opinion as to whether a federal court located in the State of
New York would have or would elect to exercise jurisdiction in a dispute
arising under the Supplemental Indenture.
G. The foregoing opinions are subject to the qualification that the
enforceability of certain waivers, rights and remedies provided in the
Supplemental Indenture may be unavailable or limited by certain laws and
judicial decisions. In respect of such qualification, however, we are of
the opinion that such laws and judicial decisions do not, subject to the
other exceptions and limitations contained in this opinion letter, make the
remedies generally afforded by the Supplemental Indenture inadequate for
the practical realization of the benefits purported to be provided by such
remedies with respect to the Trustee or the Holders' ability to realize
upon the principal benefits or security intended to be provided by the
Supplemental Indenture.
H. We note that the provisions of the Supplemental Indenture that permit the
Trustee or the Holders to take actions or make determinations, or to
benefit from indemnities and similar undertakings by any other party
thereto may be subject to a requirement that such action be taken or such
determinations be made, and that any action or inaction by the Trustee or
the Holders that may give rise to a request for payment under such an
undertaking be taken, or not taken, on a reasonable basis and in good
faith.
I. This law firm is a registered limited liability partnership organized under
the laws of the State of Texas.
AKIN GUMP
STRAUSS HAUER & FELD LLP
_______ Attorneys at Law
Deutsche Bank Trust Company Americas
February 25, 2005
Page 5
J. This opinion letter is solely for your benefit, and no other Persons shall
be entitled to rely upon this opinion letter. Without our prior written
consent, this opinion letter may not be quoted in whole or in part or
otherwise referred to in any document and may not be furnished or otherwise
disclosed to or used by any other Person, except for (i) delivery of copies
hereof to counsel for the addressees hereof, (ii) inclusion of copies hereof
in a closing file and (iii) use hereof in any legal proceeding arising out
of the transactions contemplated by the Supplemental Indenture filed by an
addressee hereof against this law firm or in which any addressee hereof is a
defendant.
Very truly yours,
/s/ Akin Gump Strauss & Feld LLP
Akin Gump Strauss & Feld LLP