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SUPPLEMENTAL INDENTURE NO. 1
Dated as of November 9, 2000
to
INDENTURE
Dated as of July 30, 1997
between
Dura Pharmaceuticals, Inc., as Issuer,
and
Chase Manhattan Bank and Trust Company, National Association, as Trustee
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3 1/2% Convertible Subordinated Notes due 2002
SUPPLEMENTAL INDENTURE NO. 1, dated as of November 9, 2000 (the
"Supplemental Indenture"), among Dura Pharmaceuticals, Inc., a Delaware
corporation (the "Company), and Chase Manhattan Bank and Trust Company, National
Association, as Trustee (the "Trustee"). Capitalized terms used herein but not
defined shall have the meanings assigned to them in the Indenture.
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture dated as of July 30, 1997 (the "Indenture") providing for the
issuance of its 3 1/2% Convertible Subordinated Notes due 2002 (the "Notes");
and
WHEREAS, subsequent to the execution of the Indenture and the issuance of
the Notes, the Company has entered into that certain Agreement and Plan of
Merger, dated as of September 10, 2000 (the "Merger Agreement"), by and among
the Company, Elan Corporation, plc ("Elan") and Carbon Acquisition Corp.
("Carbon") pursuant to which (i) Carbon will merge with and into the Company
with the Company as the surviving entity; (ii) each share of Common Stock will
be converted into 0.6715 of an Elan American Depositary Share ("Elan ADSs"); and
(iii) the Company will become a wholly owned subsidiary of Elan (the "Merger");
and
WHEREAS, the Merger is the type of transaction described in Section 14.6 of
the Indenture; and
WHEREAS, pursuant to and as contemplated by Section 14.6 of the Indenture,
the parties hereto desire to execute and deliver this Supplemental Indenture for
the purpose of providing for the conversion of the Notes into Elan ADSs as
provided herein and therein.
NOW, THEREFORE, in consideration of the above premises, each party agrees,
for the benefit of the other and for the equal and ratable benefit of the
Holders of the Notes, as follows:
I.
Conversion of the NOTES
A. Conversion Privilege.
Notwithstanding the provisions of Article Fourteen of the Indenture, each
Holder of a Note shall hereafter have the right, at such Holder's option, at any
time during the period such Note shall be convertible as specified in Section
14.1 of the Indenture, to convert such Note only into the kind and amount of
shares of stock and other assets (including cash) receivable upon the Merger
pursuant to the Merger Agreement by a holder of a number of shares of Common
Stock issuable upon conversion of such
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Note immediately prior to the Merger. Accordingly, the Notes shall be
convertible into Elan ADSs at a Conversion Price of $75.4058.
B. Adjustments for Subsequent Events.
The Conversion Price provided for in Section I.A shall be adjusted for
events subsequent to the date of this Supplemental Indenture in a manner as
nearly equivalent as may be practicable to the adjustments provided for in
Article 14 of the Indenture.
C. Amendment and Restatement of the Conversion Notice.
The Conversion Notice is hereby amended and restated in its entirety as set
forth in the form attached hereto as Annex A.
II.
MISCELLANEOUS PROVISIONS
A. Indenture.
Except as expressly amended by this Supplemental Indenture, the Indenture
is in all respects ratified and confirmed, and all the terms, conditions and
provisions thereof shall remain in full force and effect. All provisions of this
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture and the Indenture, as supplemented by this Supplemental
Indenture, shall be read, taken and construed as one and the same instrument for
all purposes.
B. Trustee Not Responsible for Recitals.
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness, except
for the recital indicating the Trustee's approval of the form of this
Supplemental Indenture.
C. Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
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D. Duplicate Originals.
This Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts together constitute
but one and the same instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly signed, all as of the date first written above.
DURA PHARMACEUTICALS, INC.
By: /s/ Mitchell R. Woodbury
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Name: Mitchell R. Woodbury
Title: Senior Vice President and
General Counsel
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Trustee:
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By: /s/ Rose Maravilla
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Name: Rose Maravilla
Title: Assistant Vice President
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ANNEX A
CONVERSION NOTICE
To: ELAN CORPORATION, PLC
The undersigned registered owner of this Note hereby irrevocably exercises
the option to convert this Note, or the portion hereof (which is $1,000
principal amount or an integral multiple thereof) below designated, into
American Depositary Shares of Elan Corporation, plc (the "Elan ADSs"), each Elan
ADS representing one Elan Ordinary Share, par value 5 Euro cents, and evidenced
by an Elan American Depositary Receipt, in accordance with the terms of the
Indenture referred to in this Note, and directs that the Elan ADSs issuable and
deliverable upon such conversion, together with any check in payment for
fractional Elan ADSs and any Notes representing any unconverted principal amount
hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If Elan ADSs or any portion of this
Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will check the appropriate box below and pay all
transfer taxes payable with respect thereto. Any amount required to be paid to
the undersigned on account of interest accompanies this Note.
Dated:_________________
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Signature(s)
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations
and credit unions) with membership in an
approved signature guarantee medallion
program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Elan ADSs are to
be issued, or Notes are to be delivered,
other than to and in the name of the
registered holder.
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Signature Guarantee
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_____ Fill in for registration of
Elan ADSs if to be issued, and
Notes if to be delivered, other
than to and in the name of the
registered holder:
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(Name)
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(Social Security or other
Taxpayer Identification Number)
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(Street Address)
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(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all): $________
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Social Security or Other Taxpayer
Identification Number